HSBC USA v. John Frank, appellant, et al., defendants.

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

HSBC Bank USA, National Association, etc., respondent, v. John Frank, appellant, et al., defendants.

2017–03300 (Index No. 158/14)

Decided: August 21, 2019

MARK C. DILLON, J.P. ROBERT J. MILLER SYLVIA O. HINDS–RADIX FRANCESCA E. CONNOLLY, JJ. Charles Wallshein, Melville, NY, for appellant. Leopold & Associates, PLLC (Greenberg Traurig, LLP, New York, N.Y. [Brian Pantaleo], of counsel), for respondent.

Argued—April 5, 2019

DECISION & ORDER

In an action to foreclose a mortgage, the defendant John Frank appeals from an order of the Supreme Court, Nassau County (Jack L. Libert, J.), entered March 3, 2017.  The order, insofar as appealed from, denied that branch of that defendant's motion which was, in effect, pursuant to CPLR 5015(a)(1) to vacate a judgment of foreclosure and sale of the same court (Thomas A. Adams, J.), entered October 25, 2016, upon his default in opposing the plaintiff's motion to confirm a referee's report and for a judgment of foreclosure and sale.

ORDERED that the order entered March 3, 2017 is affirmed insofar as appealed from, with costs.

In 2014, the plaintiff commenced this action to foreclose a mortgage against, among others, the defendant John Frank (hereinafter the defendant).  The defendant's attorney appeared in the action on behalf of the defendant by filing a notice of appearance, but failed to timely answer the complaint.  In an order entered September 1, 2015, the Supreme Court granted the plaintiff's motion for leave to enter a default judgment and to appoint a referee to compute the amount due the plaintiff, and denied the defendant's cross motion to dismiss the complaint or, alternatively, to compel acceptance of his late answer.  On October 11, 2016, the court granted the plaintiff's unopposed motion to confirm the referee's report and for a judgment of foreclosure and sale.  Following entry of the judgment of foreclosure and sale on October 25, 2016, a foreclosure sale was scheduled for March 7, 2017.

By order to show cause dated February 6, 2017, the defendant moved, in effect, pursuant to CPLR 5015(a)(1) to vacate the judgment of foreclosure and sale entered upon his default in opposing the plaintiff's motion and, thereupon, for a new determination on the issue of the amount due the plaintiff under the note and mortgage, and to stay the foreclosure sale.  In support of his motion, the defendant argued that the referee erred in computing the amount due the plaintiff without holding a hearing on notice (see CPLR 4313).  In an order entered March 3, 2017, the Supreme Court, inter alia, denied the defendant's motion.  The defendant appeals.

“In order to vacate a default in opposing a motion pursuant to CPLR 5015(a)(1), the moving party is required to demonstrate a reasonable excuse for his or her default and a potentially meritorious opposition to the motion” (Hudson City Sav. Bank v. Bomba, 149 AD3d 704, 705 [internal quotation marks omitted];  see Bank of N.Y. Mellon Trust Co., N.A. v Sukhu, 163 AD3d 748;  Aurora Loan Servs., LLC v. Ahmed, 122 AD3d 557).  “The determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court” (Deutsche Bank Natl. Trust Co. v Saketos, 158 AD3d 610, 612 [internal quotation marks omitted] ).

Here, the defendant failed to offer any excuse for his default in opposing the plaintiff's motion to confirm the referee's report and for a judgment of foreclosure and sale (see Bank of N.Y. Mellon Trust Co., N.A. v Sukhu, 163 AD3d at 748;  Hudson City Sav. Bank v. Bomba, 149 AD3d at 705;  JP Morgan Mtge. Acquisition Corp. v Hayles, 113 AD3d 821;  cf.  Aurora Loan Servs., LLC v. Ahmed, 122 AD3d at 558;  Goldman v. Cotter, 10 AD3d 289).  Even if the defendant had demonstrated a reasonable excuse for his default, he failed to offer a potentially meritorious opposition to the motion (see Nationstar Mtge., LLC v. Rodriguez, 166 AD3d 990;  Bank of N.Y. Mellon Trust Co., N.A. v Sukhu, 163 AD3d at 751).  The defendant's contention that the referee failed to comply with the notice requirement of CPLR 4313 is not supported by the record (cf.  Excel Capital Group Corp. v 225 Ross St. Realty, Inc., 165 AD3d 1233;  Aurora Loan Servs., LLC v. Taylor, 114 AD3d 627, affd 25 NY3d 355).  Accordingly, the defendant was not entitled to vacatur of the judgment of foreclosure and sale pursuant to CPLR 5015(a)(1).

DILLON, J.P., MILLER, HINDS–RADIX and CONNOLLY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court