Emigrant Sav. Bank v. Burke

• Decision Date: 03 November 2021
• Docket Number: 2018–00693,Index No. 800/10
• Citation: 199 A.D.3d 652,153 N.Y.S.3d 885 (Mem)
• Parties: EMIGRANT SAVINGS BANK, respondent, v. Timothy C. BURKE, et al., defendants, Bruce Burke, appellant.
• Court: New York Supreme Court — Appellate Division

199 A.D.3d 652

153 N.Y.S.3d 885 (Mem)

EMIGRANT SAVINGS BANK, respondent,

v. Timothy C. BURKE, et al., defendants,Bruce Burke, appellant.

2018–00693

Index No. 800/10

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

Submitted—September 20, 2021

November 3, 2021

Sichenzia Ross Ference Kesner, LLP, Huntington Station, N.Y. (Todd J. Manister of counsel), for appellant.

Knuckles, Komosinski & Manfro, LLP, Elmsford, N.Y. (Gregg L. Verrilli of counsel), for respondent.

CHERYL E. CHAMBERS, J.P., BETSY BARROS, PAUL WOOTEN, DEBORAH A. DOWLING, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Bruce Burke appeals from an order of the Supreme Court, Nassau County (Thomas A. Adams, J.), entered November 21, 2017. The order denied that defendant's motion, inter alia, to vacate an order and judgment of foreclosure and sale (one paper) of the same court entered January 27, 2016.

ORDERED that the order is affirmed, with costs.

In January 2010, the plaintiff commenced this action against the defendant Bruce Burke (hereinafter the defendant), among others, to foreclose a mortgage on certain real property in Port Washington. The defendant failed to appear or answer the complaint. In an order dated July 15, 2010, the Supreme Court granted the plaintiff's motion, inter alia, for leave to enter a default judgment and for an order of reference, and referred the matter to a referee to ascertain and compute the amount due to the plaintiff. In an order dated August 24, 2012, the court directed dismissal of the action as abandoned pursuant to CPLR 3215(c) (hereinafter the order of dismissal). In an order dated July 30, 2013, the court granted the plaintiff's motion to vacate the order of dismissal and restored the action to the calendar. In an order dated November 13, 2015, the court granted the plaintiff's motion for a judgment of foreclosure and sale. On January 27, 2016, the court entered an order and judgment of foreclosure and sale, inter alia, directing the sale of the subject property. The defendant did not appeal from the order and judgment of foreclosure and sale.

In June 2017, the defendant moved, inter alia, to vacate the order and judgment of foreclosure and sale. In an order entered November 21, 2017, the Supreme Court denied the defendant's motion. The defendant appeals.

A defendant seeking to vacate a judgment pursuant to CPLR 5015(a)(1) must demonstrate a reasonable excuse for the default and a potentially meritorious defense to the action (see LaSalle Bank N.A. v. Calle, 153 A.D.3d 801, 802, 61 N.Y.S.3d 104 ; Deutsche Bank Natl. Trust Co. v. Ramirez, 117 A.D.3d 674, 675, 985 N.Y.S.2d 616 ). Here, the Supreme Court properly determined that the defendant failed to demonstrate a reasonable excuse for his default based upon an unsubstantiated claim of law office failure (see Wilmington Sav. Fund Socy., FSB v. Rodriguez, 197 A.D.3d 784...