BANK NATIONAL ASSOCIATION ETC v. Edith Cabral, appellant. (2026)

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Edith Cabral appeals from an order of the Supreme Court, Westchester County (Charles D. Wood, J.), dated November 28, 2023.  The order denied that defendant's motion, inter alia, to vacate (1) a prior order of the same court (Mary H. Smith, J.) dated January 3, 2020, among other things, granting that branch of the plaintiff's motion which was for summary judgment on the complaint insofar as asserted against that defendant, and (2) an order and judgment of foreclosure and sale (one paper) of the same court (Mary H. Smith, J.) dated June 8, 2021, inter alia, granting that branch of the plaintiff's motion which was for a judgment of foreclosure and sale.

ORDERED that the order dated November 28, 2023, is affirmed, with costs.

In May 2005, Emmanuel Baidoo (hereinafter the borrower) executed and delivered a note to JPMorgan Chase Bank, N.A. (hereinafter Chase), in the amount of $394,250, which was secured by a mortgage on certain real property located in Westchester County.  The borrower died on March 6, 2011.  On November 20, 2012, the defendant Edith Cabral (hereinafter the appellant) executed a loan modification agreement with Chase.

In March 2019, the plaintiff commenced this action against, among others, the appellant to foreclose the mortgage.  The appellant, together with two other defendants (hereinafter collectively the defendants), interposed an answer asserting various affirmative defenses.  In September 2019, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendants and for an order of reference.  The appellant failed to oppose the motion.  In an order dated January 3, 2020 (hereinafter the summary judgment order), the Supreme Court granted the plaintiff's unopposed motion.  Notice of entry of the summary judgment order was served on the appellant on the same day.

In March 2020, the plaintiff moved, among other things, for a judgment of foreclosure and sale.  The appellant failed to oppose the motion.  In an order and judgment of foreclosure and sale dated June 8, 2021 (hereinafter the foreclosure judgment), the Supreme Court granted the plaintiff's unopposed motion and directed the sale of the property.  Notice of entry of the foreclosure judgment was served on the appellant on August 30, 2021.

On September 22, 2023, the appellant moved, inter alia, to vacate the summary judgment order and the foreclosure judgment.  In an order dated November 28, 2023, the Supreme Court denied the motion.  The appellant appeals.  We affirm, albeit on different grounds.

To the extent those branches of the appellant's motion which were to vacate the summary judgment order and the foreclosure judgment could be construed as pursuant to CPLR 5015(a)(1) to vacate her default in opposing the plaintiff's motions, the appellant failed to offer any excuse for her default (see U.S. Bank N.A. v. Fuller–Watson, 197 AD3d 764, 767).  Since the appellant failed to demonstrate a reasonable excuse for her default in opposing the plaintiff's motions, this Court need not consider whether she had a meritorious opposition to the motions (see HSBC Bank USA, N.A. v. Saris, 250 AD3d 1;  CitiMortgage, Inc. v. Ramlal, 238 AD3d 976, 978).  As the appellant failed to vacate her default, she was precluded from asserting defenses based on lack of standing and failure to comply with RPAPL 1304 (see U.S. Bank N.A. v. Fuller–Watson, 197 AD3d at 766;  Deutsche Bank Natl. Trust Co. v O'Connor, 223 AD3d 872, 877).

Accordingly, the Supreme Court properly denied the appellant's motion, inter alia, to vacate the summary judgment order and the foreclosure judgment.

The parties’ remaining contentions either are without merit or need not be reached in light of our determination.

GENOVESI, J.P., WAN, LANDICINO and HOM, JJ., concur.