Aurora Loan Serv. v. Grant

• Decision Date: 23 February 2010
• Citation: 70 A.D.3d 986,2010 N.Y. Slip Op. 01605,893 N.Y.S.2d 898
• Parties: AURORA LOAN SERVICES, respondent,v.Philip GRANT, appellant, et al., defendants.
• Court: New York Supreme Court — Appellate Division

70 A.D.3d 986
893 N.Y.S.2d 898
2010 N.Y. Slip Op. 01605

AURORA LOAN SERVICES, respondent,
v.
Philip GRANT, appellant, et al., defendants.

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

Feb. 23, 2010.

Philip Grant, Brooklyn, N.Y., appellant pro se.Tompkins, McGuire, Wachenfeld & Barry, LLP, New York, N.Y. (William C. Sandelands of counsel), for respondent.

In an action, inter alia, to foreclose a mortgage, the defendant Philip Grant appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Rothenberg, J.), dated May 29, 2008, as denied those branches of his motion which were to dismiss the complaint insofar as asserted against him pursuant to CPLR 3211(a)(1) and to vacate an order of the same court (Held, J.), dated March 6, 2008, granting the plaintiff's unopposed motion to dismiss his counterclaims pursuant to CPLR 3211(a)(5) and (a)(7), and granted those branches of the plaintiff's cross motion which were for summary judgment on the complaint and to dismiss his affirmative defenses.

ORDERED that the order dated May 29, 2008, is affirmed insofar as appealed from, with costs.

“In order to prevail on a motion to vacate a default in opposing a motion, a moving party is required to demonstrate both a reasonable excuse for its default and a meritorious claim” ( Montague v. Rivera, 50 A.D.3d 656, 657, 854 N.Y.S.2d 749; see Raciti v. Sands Point Nursing Home, 54 A.D.3d 1014, 864 N.Y.S.2d 176; St. Rose v. McMorrow, 43 A.D.3d 1146, 842 N.Y.S.2d 534). Contrary to the appellant's contention, he failed to demonstrate that any of his counterclaims had merit.

The plaintiff satisfied its prima facie burden establishing its entitlement to judgment as a matter of law ( see Popular Fin. Servs., LLC v. Williams, 50 A.D.3d 660, 855 N.Y.S.2d 581; U.S. Bank Nat. Assn. TR U/S 6/01/98 [ Home Equity Loan Trust 1998–2 ] v. Alvarez, 49 A.D.3d 711, 854 N.Y.S.2d 171). In opposition, the appellant failed to demonstrate the existence of a triable issue of fact as to a bona fide defense to the action ( see U.S. Bank Trust N.A. Trustee v. Butti, 16 A.D.3d 408, 792 N.Y.S.2d 505; Mahopac Natl. Bank v. Baisley, 244 A.D.2d 466, 467, 664 N.Y.S.2d 345). Accordingly, the Supreme Court properly granted those branches of the plaintiff's cross motion which were for summary judgment on the complaint and to dismiss the appellant's affirmative defenses.

*899 The appellant's remaining contention is without merit.