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Bank of New York Mellon v. Genova

Supreme Court of New York, Second Department

March 28, 2018

Bank of New York Mellon, etc., respondent,
v.
Joseph Genova, also known as Joseph Genova, Jr., appellant, et al., defendants. (Index No. 130482/12)

          Argued - November 30, 2017

         D54910 C/htr

          Luthmann Law Firm, PLLC, Staten Island, NY (Richard A. Luthmann of counsel), for appellant.

          Reed Smith LLP, New York, NY (Andrew B. Messite and Kerren B. Zinner of counsel), for respondent.

          REINALDO E. RIVERA, J.P. JEFFREY A. COHEN JOSEPH J. MALTESE ANGELA G. IANNACCI, JJ.

          DECISION & ORDER

         Appeal from an order and judgment of foreclosure and sale (one paper) of the Supreme Court, Richmond County (Charles M. Troia, J.), dated February 9, 2016. The order and judgment, insofar as appealed from, granted the plaintiffs motion, in effect, for summary judgment on the complaint and to confirm a referee's report, and directed the sale of the subject property, and, in effect, denied those branches of the cross motion of the defendant Joseph Genova, also known as Joseph Genova, Jr., which were to vacate his default in appearing or answering and for leave to interpose an answer.

         ORDERED that the order and judgment of foreclosure and sale is affirmed insofar as appealed from, with costs.

         In June 2012, the plaintiff commenced this action against, among others, Joseph Genova, also known as Joseph Genova, Jr. (hereinafter the defendant), to foreclose a mortgage. The defendant failed to appear or answer the complaint. In January 2014, the plaintiff moved for an order of reference. The defendant, pro se, cross-moved to compel the plaintiff to accept a late answer. By order dated June 26, 2014, the Supreme Court granted the plaintiff s motion, denied the defendant's cross motion, and referred the matter to a referee to compute the amount due on the mortgage loan. In January 2015, the plaintiff moved, in effect, for summary judgment on the complaint and to confirm the referee's report. The defendant, now represented by counsel, cross-moved, inter alia, to vacate his default in appearing or answering and for leave to interpose an answer. In an order and judgment of foreclosure and sale dated February 9, 2016, the court granted the plaintiff s motion and directed the sale of the subject property, and, in effect, denied the defendant's cross motion. The defendant appeals from so much of the order and judgment as granted the plaintiffs motion and directed the sale of the subject property, and, in effect, denied those branches of his cross motion which were to vacate his default in appearing or answering and for leave to interpose an answer. We affirm insofar as appealed from.

         In support of its motion, in effect, for summary judgment and to confirm the referee's report, the plaintiff demonstrated its prima facie entitlement to judgment as a matter of law by submitting the mortgage, the note, and an affidavit of its loan servicer's assistant vice president attesting to the borrower's default under the terms of the loan (see Bank of N.Y. Mellon v Burke, 155 A.D.3d 932; Silvergate Bank v Calkula Props., Inc., 150 A.D.3d 1295, 1296). The plaintiff also demonstrated, prima facie, that it was the holder of the note at the time the action was commenced, as evidenced by its attachment of the note, endorsed in blank, to the summons and complaint at the time the action was commenced (see Bank of N.Y. Mellon vBurke, 155 A.D.3d at 932). In opposition, the defendant failed to raise a triable issue of fact.

         Furthermore, ''[a] defendant seeking to vacate a default in appearing or answering must provide a reasonable excuse for the default and demonstrate a potentially meritorious defense to the action" (Deutsche Bank Natl. Trust Co. v Gutierrez, 102 A.D.3d 825, 825; see Wells Fargo Bank, N.A. v Russell, 101 A.D.3d 860, 861; Arias v First Presbyt. Church in Jamaica, 100 A.D.3d 940, 941; Deutsche Bank Natl. Trust Co. v Rudman, 80 A.D.3d 651, 652; see also HSBC Bank USA, N.A. v Powell, 148 A.D.3d 1123, 1124; Federal Natl. Mtge. Assn. v Zapata, 143 A.D.3d 857, 858; Mannino Dev. Inc. v Linares, 117 A.D.3d 995, 995).

         Here, the defendant failed to provide a reasonable excuse for his default. His bare and unsubstantiated denial of service of the summons and complaint did not constitute a reasonable excuse for his default in answering, since it lacked the factual specificity and detail required to rebut the prima facie evidence of proper service set forth in the affidavit of the plaintiffs process server (see HSBC Bank USA, N.A. v Powell, 148 A.D.3d at 1124; TCIF REO GCM, LLC v Walker, 139 A.D.3d 704, 705; Aurora Loan Servs., LLC v Lucero, 131 A.D.3d 496, 497). Moreover, the defendant failed to provide a reasonable excuse for his lengthy delay in seeking to vacate his default (see Deutsche Bank Natl. Trust Co. v Gutierrez, 102 A.D.3d at 825; Arias v First Presbyt. Church in Jamaica, 100 A.D.3d at 941). Contrary to the defendant's contention, the fact that he was not represented by counsel until he moved to vacate his default did not constitute a reasonable excuse (see Wells Fargo Bank, N.A. v Besemer, 131 A.D.3d 1047, 1049; Chase Home Fin., LLC v Minott, 115 A.D.3d 634, 634; U.S. Bank N.A. v Slavinski, 78 A.D.3d 1167, 1167; Dorrer v Berry, 37 A.D.3d 519, 520).

         Since the defendant failed to demonstrate a reasonable excuse for his default, it is unnecessary to consider whether he demonstrated the existence of a potentially meritorious defense (see HSBC Bank USA, N.A. v Powell, 148 A.D.3d at 1124; JPMorgan Chase Bank, N.A. v Comfort Boampong, 145 A.D.3d 981, 982; Federal Natl. Mtge. Assn. v Zapata, 143 A.D.3d at 858; Bank of N.Y. Mellon v Colucci, 138 A.D.3d 1047, 1048).

         Accordingly, the Supreme Court properly, in effect, denied those branches of the defendant's cross motion which were to vacate his default in appearing or answering and for leave to interpose an answer and granted the plaintiffs motion, in effect, for ...


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