OCI MORTGAGE CORPORATION v. MURPHY

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Supreme Court, Appellate Division, Second Department, New York.

OCI MORTGAGE CORPORATION, respondent, v. Pat MURPHY, appellant, et al., defendants.

Decided: February 22, 1999

GUY JAMES MANGANO, P.J., THOMAS R. SULLIVAN, ANITA R. FLORIO and LEO F. McGINITY, JJ. Pat Murphy, Oceanside, N.Y., appellant pro se. Barry R. Carus, P.C., Syosset, N.Y. (Michael C. Manniello of counsel), for respondent.

In an action to foreclose a mortgage, the defendant Pat Murphy appeals from an order of the Supreme Court, Nassau County (McCarty, J.), dated November 25, 1997, which denied his motion to vacate a prior order of the same court dated September 5, 1997, granting the plaintiff's motion for summary judgment against him and striking his answer.

ORDERED that the order is affirmed, with costs.

 Due to the failure of the appellant to offer any reasonable excuse for having failed to oppose the plaintiff's motion for summary judgment, the Supreme Court properly denied his motion to vacate its prior order granting the plaintiff's motion for summary judgment and striking his answer (see, CPLR 5015;  Vamattam v. Yohannan, 204 A.D.2d 435, 614 N.Y.S.2d 180).

 The appellant's contention that the order should have been vacated on the ground that the Supreme Court improperly permitted service to be made under CPLR 308(5) is without merit.   The proof submitted by the plaintiff was sufficient to show that the appellant was attempting to evade service.   Thus, the Supreme Court properly granted the plaintiff's original application for expedited service pursuant to CPLR 308(5) (see, Home Fed. Sav. Bank v. Versace, 252 A.D.2d 480, 675 N.Y.S.2d 131;  Franklin v. Winard, 189 A.D.2d 717, 592 N.Y.S.2d 726;  cf., Hillary v. Grace, 213 A.D.2d 450, 623 N.Y.S.2d 620).

The appellant's remaining contentions are either without merit or not properly before this court.

MEMORANDUM BY THE COURT.

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