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Deutsche Bank National Trust Co. v. Fishbein

Supreme Court of New York, Second Department

January 15, 2020

Deutsche Bank National Trust Company, respondent,
v.
Adam Fishbein, appellant, et al., defendants.

          IM Law Group, Cedarhurst, NY (Igor Meystelman of counsel), for appellant.

          CHERYL E. CHAMBERS, J.P., LEONARD B. AUSTIN, COLLEEN D. DUFFY, LINDA CHRISTOPHER, JJ.

          DECISION & ORDER

         In an action to foreclose a mortgage, the defendant Adam Fishbein appeals from an order of the Supreme Court, Kings County (Sylvia G. Ash, J.), dated March 12, 2018. The order granted the plaintiff's motion to vacate an order of the same court dated January 28, 2014, directing dismissal of the action, and to restore the action to active status, and denied that defendant's cross motion, inter alia, to vacate his default in appearing and to compel the plaintiff to accept a late answer.

         ORDERED that the order dated March 12, 2018, is reversed, on the law, with costs, the plaintiff's motion to vacate the order dated January 28, 2014, and to restore the action to active status is denied, and the cross motion of the defendant Adam Fishbein, inter alia, to vacate his default in appearing and to compel the plaintiff to accept a late answer is denied as academic.

         The plaintiff commenced this action by summons with notice dated June 5, 2009, against the defendant Adam Fishbein, among others, to foreclose a mortgage. Fishbein did not appear in the action or answer the complaint. After several appearances in the Foreclosure Settlement Conference part, the matter was marked "not settled" and put down for a status conference. The initial status conference was then adjourned to January 28, 2014. On that date, the Supreme Court directed dismissal of the action without prejudice, in effect, pursuant to Uniform Rules for Trial Courts (22 NYCRR 202.27), after neither Fishbein nor the plaintiff appeared for the scheduled status conference. By notice of motion dated November 2, 2017, the plaintiff moved to vacate the order of dismissal and to restore the action to the active calendar. Fishbein opposed the motion and cross-moved, inter alia, to vacate his default in appearing and to compel the plaintiff to accept a late answer. In an order dated March 19, 2018, the Supreme Court granted the plaintiff's motion and denied Fishbein's cross motion. Fishbein appeals.

         In order to vacate a default in appearing at a scheduled court conference, a plaintiff must demonstrate both a reasonable excuse and a potentially meritorious cause of action (see CPLR 5015[a][1]; Financial Freedom Acquisition, LLC v Unknown Heirs to the estate of Emmie Kenner, 172 A.D.3d 1173, 1175; Option One Mtge. Corp. v Rose, 164 A.D.3d 1251, 1252; Stein v Doukas, 157 A.D.3d 743, 744; Wright v City of Poughkeepsie, 136 A.D.3d 809, 809; Mazzio v Jennings, 128 A.D.3d 1032, 1032). The determination of whether an excuse is reasonable lies within the sound discretion of the Supreme Court (see Polsky v Simon, 145 A.D.3d 693, 693; Herrera v MTA Bus Co., 100 A.D.3d 962, 963; Walker v Mohammed, 90 A.D.3d 1034, 1034). The court has discretion to accept law office failure as a reasonable excuse (see CPLR 2005) where the claim is supported by a detailed and credible explanation of the default (see Option One Mtge. Corp. v Rose, 164 A.D.3d at 1252; GMAC Mtge., LLC v Guccione, 127 A.D.3d 1136, 1138; Bank of N.Y. v Young, 123 A.D.3d 1068, 1069; 1158 Props., LLC v 1158 McDonald, LLC, 104 A.D.3d 658, 658; People's United Bank v Latini Tuxedo Mgt., LLC, 95 A.D.3d 1285, 1286; Kohn v Kohn, 86 A.D.3d 630, 630).

         Here, the plaintiff's bare allegation of law office failure was conclusory and wholly unsubstantiated. The plaintiff did not proffer an affidavit from anyone with personal knowledge of the purported law office failure and failed to provide any details regarding such failure (see Fremont Inv. & Loan v Fausta, 164 A.D.3d 1314, 1315; Option One Mtge. Corp. v Rose, 164 A.D.3d at 1252; OneWest Bank, FSB v Singer, 153 A.D.3d 714, 716; Bank of N.Y. v Young, 123 A.D.3d at 1069). Having failed to provide a detailed and credible explanation for the default, the plaintiff's allegation of law office failure did not rise to the level of a reasonable excuse for its default.

         Since the plaintiff failed to proffer a reasonable excuse for its default, this Court need not consider whether it demonstrated a potentially meritorious cause of action (see Option One Mtge. Corp. v Rose, 164 A.D.3d at 1253; Stein v Doukas, 157 A.D.3d at 744; Natural Prod. Import Am., Inc. v J & J Express Trucking Corp., 137 A.D.3d 883, 884; Wright v City of Poughkeepsie, 136 A.D.3d at 809).

         In light of our determination, Fishbein's cross motion, inter alia, to vacate his default in appearing and to compel the plaintiff to accept a late answer has been rendered academic.

         Accordingly, the Supreme Court should have denied the plaintiff's motion to vacate the order dated January 28, 2014, and should ...


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