251 Gotham, LLC v. Bank of N.Y. Mellon

• Decision Date: 10 August 2022
• Docket Number: 2021–01772,Index No. 606566/18
• Citation: 208 A.D.3d 540,173 N.Y.S.3d 566
• Parties: 251 GOTHAM, LLC, respondent, v. BANK OF NEW YORK MELLON, etc., defendant, Deutsche Bank National Trust Company, etc., appellant.
• Court: New York Supreme Court — Appellate Division

208 A.D.3d 540
173 N.Y.S.3d 566

251 GOTHAM, LLC, respondent,
v.
BANK OF NEW YORK MELLON, etc., defendant,

Deutsche Bank National Trust Company, etc., appellant.

2021–01772
Index No. 606566/18

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

Submitted—March 21, 2022
August 10, 2022

173 N.Y.S.3d 567

Berkman, Henoch, Peterson, Peddy & Fenchel, P.C., Garden City, NY (Megan K. McNamara, Hillary Prada, and Rajdai Singh of counsel), for appellant.

FRANCESCA E. CONNOLLY, J.P., SHERI S. ROMAN, LINDA CHRISTOPHER, WILLIAM G. FORD, JJ.

DECISION & ORDER

208 A.D.3d 540

In an action pursuant to RPAPL 1501(4) to cancel and discharge of record two mortgages, the defendant Deutsche Bank National Trust Company appeals from an order of the Supreme Court, Nassau County (Julianne T. Capetola, J.), entered November 23, 2020. The order, insofar as appealed from, denied those branches of that defendant's motion which were pursuant to CPLR 5015(a)(1) to vacate so much of a judgment of the same court entered January 28, 2019, as, upon its failure

208 A.D.3d 541

to appear or answer the complaint, was in favor of the plaintiff and against it, and thereupon, to dismiss the complaint insofar as asserted against it, or, in the alternative, for leave to serve a late answer.

ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.

In May 2018, the plaintiff commenced this action pursuant to RPAPL 1501(4) to cancel and discharge of record two mortgages. The defendant Deutsche Bank National Trust Company (hereinafter Deutsche Bank) failed to appear or answer the complaint. On January 28, 2019, a judgment was entered in favor of the plaintiff and against the defendants. Subsequently, Deutsche Bank moved, inter alia, pursuant to CPLR 5015(a)(1) to vacate so much of the judgment as, upon its failure to appear or answer the complaint, was in favor of the plaintiff and against it and thereupon, to dismiss the complaint insofar as asserted against it, or, in the alternative, for leave to serve a late answer. In an order entered November 23, 2020, the Supreme Court, among other things, denied those branches of Deutsche Bank's motion. Deutsche Bank appeals.

"A defendant seeking to vacate a default in appearing in the action or answering the complaint must show both a reasonable excuse for the default and a potentially meritorious defense" ( Wells Fargo Bank, N.A. v. Hyun Jung Kim, 189 A.D.3d 1673, 1674, 135 N.Y.S.3d 267 ; see CPLR 5015[a][1] ; Hairston v. Marcus...