Bank of N.Y. v. Young

• Decision Date: 31 December 2014
• Docket Number: 2013-06621
• Citation: Bank of N.Y. v. Young, 2014 NY Slip Op 9090, 2 N.Y.S.3d 127, 123 A.D.3d 1068 (N.Y. App. Div. 2014)
• Parties: BANK OF NEW YORK, etc., appellant, v. Ivan YOUNG, respondent, et al., defendants.
• Court: New York Supreme Court — Appellate Division

123 A.D.3d 1068

2 N.Y.S.3d 127

2014 N.Y. Slip Op. 09090

BANK OF NEW YORK, etc., appellant

v.Ivan YOUNG, respondent, et al., defendants.

2013-06621

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

Dec. 31, 2014.

Davidson Fink LLP, Rochester, N.Y. (Larry T. Powell of counsel), for appellant.

Young Law Group, PLLC, Bohemia, N.Y. (Ivan Young, pro se, of counsel), for respondent.

REINALDO E. RIVERA, J.P., JOHN M. LEVENTHAL, CHERYL E. CHAMBERS, and SANDRA L. SGROI, JJ.

Opinion

In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Spinner, J.), dated March 7, 2013, which denied its motion, in effect, to vacate a prior order of the same court dated July 18, 2011, granting the unopposed motion of the defendant Ivan Young pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against him for lack of standing and lack of personal jurisdiction.

ORDERED that the order dated March 7, 2013, is affirmed, with costs.

The plaintiff commenced this mortgage foreclosure action in 2008, alleging that the defendant Ivan Young failed to comply with the conditions of the mortgage by not making the payments due thereunder. In April 2010, Young moved pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against him for lack of standing and lack of personal jurisdiction. The plaintiff did not oppose the motion. In an order dated July 18, 2011, the Supreme Court granted Young's unopposed motion. Thereafter, the plaintiff moved, in effect, to vacate the order dated July 18, 2011. In an order dated March 7, 2013, the Supreme Court treated the plaintiff's motion as one for leave to reargue and renew, and denied the motion. However, since the order dated July 18, 2011, was entered upon the plaintiff's failure to oppose Young's motion, the Supreme Court should have treated the plaintiff's motion solely as a motion to vacate the order dated July 18, 2011.

Although the Supreme Court incorrectly treated the plaintiff's motion as one for leave to reargue, it nonetheless did not err in denying the motion (see Schenk v. Staten Is. Univ. Hosp., 108 A.D.3d 661, 662, 969 N.Y.S.2d 519 ). A party seeking to vacate an order entered upon his or her failure to oppose a motion must demonstrate both a reasonable excuse for the default and a potentially meritorious opposition to the motion (see CPLR 5015[a][1] ; Oller v. Liberty Lines Tr., Inc., 111 A.D.3d 903, 904, 975 N.Y.S.2d 768 ; Schenk v. Staten Is. Univ. Hosp., 108 A.D.3d at 662, 969 N.Y.S.2d 519 ; Smyth v. Getty Petroleum Mktg., Inc., 103 A.D.3d 790, 959 N.Y.S.2d 543 ). Here, the plaintiff's bare allegation of law office failure was insufficient to show a reasonable excuse for its default (see Carillon Nursing & Rehabilitation Ctr., LLP v. Fox, 118 A.D.3d...