Bank of N.Y. Mellon v. Izmirligil

• Decision Date: 25 October 2011
• Citation: 88 A.D.3d 930,2011 N.Y. Slip Op. 07596,931 N.Y.S.2d 667
• Parties: Bank of New York MELLON, etc., respondent,v.Arif IZMIRLIGIL, appellant, et al., defendants.
• Court: New York Supreme Court — Appellate Division

88 A.D.3d 930
931 N.Y.S.2d 667
2011 N.Y. Slip Op. 07596

Bank of New York MELLON, etc., respondent,
v.
Arif IZMIRLIGIL, appellant, et al., defendants.

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

Oct. 25, 2011.

[931 N.Y.S.2d 668]

Ronald D. Weiss, Melville, N.Y., for appellant.Bonchonsky & Zaino, LLP, Garden City, N.Y. (Christopher J.W. Verby of counsel), for respondent.REINALDO E. RIVERA, J.P., ANITA R. FLORIO, THOMAS A. DICKERSON, and PLUMMER E. LOTT, JJ.

[88 A.D.3d 931] In an action to foreclose a mortgage, the defendant Arif Izmirligil appeals from (1) an order of the Supreme Court, Suffolk County (Whelan, J.), dated July 16, 2010, which denied his motion, in effect, inter alia, to vacate his default in appearing or answering, and (2) an order of the same court dated September 22, 2010, which denied his motion for leave to renew and reargue that motion.

ORDERED that the appeal from so much of the order dated September 22, 2010, as denied that branch of the motion which was for leave to reargue is denied, as no appeal lies from the denial of a motion for leave to reargue; and it is further,

ORDERED that the order dated July 16, 2010, is affirmed; and it is further,

ORDERED that the order dated September 22, 2010, is affirmed insofar as reviewed; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

“A defendant who has failed to appear or answer the complaint must provide a reasonable excuse for the default and demonstrate a potentially meritorious defense to the action to avoid the entering of a default judgment or to extend the time to answer” ( Wells Fargo Bank, N.A. v. Cervini, 84 A.D.3d 789, 789, 921 N.Y.S.2d 643; see Maspeth Fed. Sav. & Loan Assn. v. McGown, 77 A.D.3d 889, 890, 909 N.Y.S.2d 403; Equicredit Corp. of Am. v. Campbell, 73 A.D.3d 1119, 1120, 900 N.Y.S.2d 907; Nasca v. Town of Brookhaven, 4 A.D.3d 462, 462, 771 N.Y.S.2d 686; Khanna v. Premium Food & Sports Enter., 279 A.D.2d 508, 509, 720 N.Y.S.2d 349). “ ‘The determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court’ ” ( Wells Fargo Bank, N.A. v. Cervini, 84 A.D.3d at 789, 921 N.Y.S.2d 643, quoting Maspeth Fed. Sav. & Loan Assn. v. McGown, 77 A.D.3d at 890, 909 N.Y.S.2d 403; see

[931 N.Y.S.2d 669]

Star Indus., Inc. v. Innovative Beverages, Inc., 55 A.D.3d 903, 904, 866 N.Y.S.2d 357; Antoine v. Bee, 26 A.D.3d 306, 306, 812 N.Y.S.2d 557).

Here, the defendant Arif Izmirligil (hereinafter...