Deutsche Bank Trust Co. v. Marous

• Citation: 127 A.D.3d 1012,2015 N.Y. Slip Op. 03315,5 N.Y.S.3d 883 (Mem)
• Decision Date: 22 April 2015
• Docket Number: 2013-09679, Index No. 20986/10.
• Parties: DEUTSCHE BANK TRUST COMPANY AMERICAS, etc., respondent, v. Gabriel MAROUS, also known as Gabriel J. Marous, also known as Garbriel Marous, appellant, et al., defendants.
• Court: New York Supreme Court — Appellate Division

127 A.D.3d 1012

5 N.Y.S.3d 883 (Mem)

2015 N.Y. Slip Op. 03315

DEUTSCHE BANK TRUST COMPANY AMERICAS, etc., respondent

v.Gabriel MAROUS, also known as Gabriel J. Marous, also known as Garbriel Marous, appellant, et al., defendants.

2013-09679, Index No. 20986/10.

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

April 22, 2015.

John J. Leen, White Plains, N.Y., for appellant.

Houser & Allison, New York, N.Y. (Zachary R. Gold of counsel), for respondent.

Opinion

In an action to foreclose a mortgage, the defendant Gabriel Marous appeals from an order of the Supreme Court, Westchester County (Jamieson, J.), dated June 27, 2013, which denied his motion, made jointly with the defendant Justine Marous, in effect, to vacate their default in answering and to extend their time to serve an answer.

ORDERED that the order is affirmed, with costs.

A defendant who has failed to timely answer a complaint must provide a reasonable excuse for the delay and demonstrate a potentially meritorious defense to the action (see CPLR 3012[d] ; 5015[a][1]; Mannino Dev., Inc. v. Linares, 117 A.D.3d 995, 986 N.Y.S.2d 578 ; Vigo v. 501 Second St. Holding Corp., 100 A.D.3d 871, 955 N.Y.S.2d 99 ; Integon Natl. Ins. Co. v. Noterile, 88 A.D.3d 654, 655, 930 N.Y.S.2d 260 ; Maspeth Fed. Sav. & Loan Assn. v. McGown, 77 A.D.3d 889, 890, 909 N.Y.S.2d 403 ). The determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court (see Mannino Dev., Inc. v. Linares, 117 A.D.3d at 995, 986 N.Y.S.2d 578 ; Maspeth Fed. Sav. & Loan Assn. v. McGown, 77 A.D.3d at 890, 909 N.Y.S.2d 403 ).

Here, the defendants failed to provide a reasonable excuse for the lengthy delay in seeking to answer the complaint (see Mannino Dev., Inc. v. Linares, 117 A.D.3d at 995, 986 N.Y.S.2d 578 ). As such, it is unnecessary to determine whether they demonstrated the existence of a potentially meritorious defense (see Cervini v. Cisco Gen. Constr., Inc., 123 A.D.3d 1077, 1 N.Y.S.3d 195 ; Cavalry SPV I, LLC v. Frenkel, 119 A.D.3d 724, 725, 989 N.Y.S.2d 344 ; Mannino Dev. Inc. v. Linares, 117 A.D.3d at 995–996, 986 N.Y.S.2d 578 ). Accordingly, the Supreme Court properly denied the appellant's motion, made jointly with the defendant Justine Marous, in effect, to vacate their default in answering and to extend their time to serve an answer.

To the extent that the appellant's brief purports also to be submitted on behalf of the defendant Justine Marous, we note that Justine Marous is not ...