HSBC Bank USA, Nat'l Ass'n v. Wider

• Decision Date: 05 December 2012
• Citation: 2012 N.Y. Slip Op. 08285,955 N.Y.S.2d 202,101 A.D.3d 683
• Parties: HSBC BANK USA, NATIONAL ASSOCIATION, etc., respondent, v. Aaron WIDER, appellant, et al., defendant.
• Court: New York Supreme Court — Appellate Division

101 A.D.3d 683

955 N.Y.S.2d 202

2012 N.Y. Slip Op. 08285

HSBC BANK USA, NATIONAL ASSOCIATION, etc., respondent,

v.Aaron WIDER, appellant, et al., defendant.

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

Dec. 5, 2012.

Jeffrey L. Solomon, PLLC, Woodbury, N.Y., for appellant.

Hogan Lovells U.S. LLP, New York, N.Y. (David Dunn and Chava Brandriss of counsel), for respondent.

DANIEL D. ANGIOLILLO, J.P., LEONARD B. AUSTIN, SANDRA L. SGROI, and ROBERT J. MILLER, JJ.

In an action to foreclose a mortgage, the defendant Aaron Wider appeals from an order of the Supreme Court, Nassau County (Adams, J.), dated January 19, 2011, which denied his motion, inter alia, in effect, to vacate a judgment of foreclosure and sale of the same court (McCabe, J.) entered February 25, 2009, upon his default in answering the complaint.

ORDERED that the order is affirmed, with costs.

In order to vacate his default in answering the complaint, the appellant (hereinafter the homeowner) was required to demonstrate a reasonable excuse for his failure to serve an answer and a potentially meritorious defense ( seeCPLR 5015[a]; Ateres Hasofrim, Inc. v. Kralik, 78 A.D.3d 1091, 1091, 911 N.Y.S.2d 648;Bank of N.Y. v. Lagakos, 27 A.D.3d 678, 678, 810 N.Y.S.2d 923). While the Supreme Court has the discretion to accept law office failure as a reasonable excuse, the excuse must be supported by detailed allegations of fact explaining the law office failure ( see Cantor v. Flores, 94 A.D.3d 936, 936–937, 943 N.Y.S.2d 138).

Here, the homeowner's allegation of law office failure was vague, conclusory, and unsubstantiated. Since the homeowner failed to offer a reasonable excuse for his failure to answer the complaint, the Supreme Court providently exercised its discretion in denying his motion, inter alia, in effect, to vacate the judgment of foreclosure and sale entered February 25, 2009, upon his default in answering the complaint ( see Cantor v. Flores, 94 A.D.3d at 936–937, 943 N.Y.S.2d 138;Wells Fargo Bank, N.A. v. Cervini, 84 A.D.3d 789, 790, 921 N.Y.S.2d 643;Star Indus., Inc. v. Innovative Beverages, Inc., 55 A.D.3d 903, 904, 866 N.Y.S.2d 357;see also Bank of N.Y. v. Lagakos, 27 A.D.3d at 678, 810 N.Y.S.2d 923;Fischman v. Gilmore, 246 A.D.2d 508, 508, 666 N.Y.S.2d 942;Morel v. Clacherty, 186 A.D.2d 638, 639, 589 N.Y.S.2d 778). In view of the lack of a reasonable excuse, it is unnecessary to consider whether the homeowner sufficiently demonstrated the...