Carrington Mortg. Servs. v. Fiore

• Decision Date: 16 June 2022
• Docket Number: s. 526918,528142
• Citation: 2022 NY Slip Op 03951
• Parties: Carrington Mortgage Services, LLC, Respondent, v. Glenn Fiore, Also Known as Glenn T. Fiore, et al., Appellants, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

2022 NY Slip Op 03951

Carrington Mortgage Services, LLC, Respondent,
v.
Glenn Fiore, Also Known as Glenn T. Fiore, et al., Appellants, et al., Defendants.

Nos. 526918, 528142

Supreme Court of New York, Third Department

June 16, 2022

Calendar Date: September 14, 2021.

Glenn Fiore, Warrensburg, appellant pro se.

Shapiro, DiCaro & Barak, LLC, Rochester (Virginia Grapensteter of counsel), for respondent.

Before: Garry, P.J., Aarons, Pritzker, Reynolds Fitzgerald and Colangelo, JJ.

Garry, P.J.

Appeal from an order and judgment of the Supreme Court (Muller, J.), entered September 25, 2018 in Warren County, which, among other things, granted plaintiff's motion for a judgment of foreclosure and sale.

The appeal in this foreclosure action was previously before us; in pertinent part, we withheld decision and remitted the matter to Supreme Court for a determination as to whether defendants Glenn Fiore and Junko Fiore (hereinafter defendants) would have been eligible for the assignment of counsel (198 A.D.3d 1106, 1108-1109 [2021]). Supreme Court has now determined that they were not, and defendants do not challenge that determination. We therefore proceed to the merits of their remaining claims.

In 2007, defendants executed a promissory note secured by a mortgage on real property located in Warren County. The note and mortgage were subsequently assigned to plaintiff. In April 2015, plaintiff commenced this foreclosure action based upon defendants' failure to make timely mortgage payments as of August 2014. A settlement conference was scheduled for June 2015, pursuant to CPLR 3408. Defendants did not answer the complaint, nor did they appear at the settlement conference. Plaintiff then filed an ex parte motion seeking a default judgment and order of reference. Nearly one year later, during the pendency of plaintiff's motion, defendants attempted to serve an answer, which plaintiff rejected as untimely. In July 2016, Supreme Court resumed a series of settlement conferences based upon defendants' representation that they had been misinformed about the date of the 2015 conference. The matter was ultimately released from conferencing in March 2017 when the court found that settlement was impracticable.

Defendants then moved to dismiss the complaint based upon, among other things, plaintiff's alleged lack of standing and, in the alternative, sought leave to file a late answer. In December 2017, Supreme Court denied defendants all requested relief, granted plaintiff a default judgment and issued an order of reference. Defendants thereafter sought to vacate the default judgment, without success. Plaintiff moved for a final judgment of foreclosure and sale, and defendants opposed, cross-moving again to vacate the default. In September 2018, Supreme Court denied defendants' cross motion and granted plaintiff a judgment of foreclosure and sale.

Whether viewed as a challenge to the denial of the motion for leave to file a late answer or the motion to vacate their default, or both, defendants were required to demonstrate a reasonable excuse for their delay or default (see CPLR 3012 [d]; 5015 [a] [1]; Kegelman v Town of Otsego, 203 A.D.3d 82, 84-85 [2021]; Bank of N.Y. v Richards, 192 A.D.3d 1228, 1229 [2021]; Christiana Bank & Trust Co. v Eichler, 94 A.D.3d 1170, 1171 [2012]). "A determination of reasonable excuse is left to the sound...