Maspeth Fed. Sav. and Loan Ass'n v. McGown

• Decision Date: 26 October 2010
• Citation: 77 A.D.3d 890,909 N.Y.S.2d 642
• Parties: MASPETH FEDERAL SAVINGS AND LOAN ASSOCIATION, respondent, v. James S. McGOWN, appellant, et al., defendants.
• Court: New York Supreme Court — Appellate Division

909 N.Y.S.2d 642

77 A.D.3d 890

MASPETH FEDERAL SAVINGS AND LOAN ASSOCIATION, respondent,

v.James S. McGOWN, appellant, et al., defendants.

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

Oct. 26, 2010.

Stern and Stern, Brooklyn, N.Y. (Pamela Smith of counsel), for appellant.

Masone White Penkava & Christofari, Maspeth, N.Y. (Eric S. Penkava of counsel), for respondent.

In an action to foreclose a mortgage, the defendant James S. McGown appeals from an order of the Supreme Court, Kings County (Rothenberg, J.), dated February 13, 2009, which denied his motion, inter alia, to vacate an order of the same court dated April 15, 2008, granting the plaintiff's motion for the appointmentof a receiver of rents for real property located at 84 Clinton Avenue, Brooklyn, to vacate his default in appearing or answering the complaint pursuant to CPLR 5015(a)(1), and to extend his time to serve an answer pursuant to CPLR 3012(d).

ORDERED that the order dated February 13, 2009, is affirmed, with costs.

The mortgage agreement at issue contains a provision which specifically authorizes the appointment of a receiver upon application by the mortgagee in any actionto foreclose the mortgage. Consequently, the plaintiff, as mortgagee, was entitled to the appointment of a receiver without notice and without regard to the adequacy of the security ( see Real Property Law § 254[10]; Naar v. Litwak & Co., 260 A.D.2d 613, 614, 688 N.Y.S.2d 698; Febbraro v. Febbraro, 70 A.D.2d 584, 585, 416 N.Y.S.2d 59). While a court of equity may vacate the appointment of a receiver under appropriate circumstances ( see Naar v. Litwak & Co., 260 A.D.2d at 614, 688 N.Y.S.2d 698; Clinton Capital Corp. v. One Tiffany Place Developers, 112 A.D.2d 911, 492 N.Y.S.2d 427; Home Tit. Ins. Co. v. Scherman Holding Corp., 240 App.Div. 851, 267 N.Y.S. 84), it was a provident exercise of discretion under the circumstances of this case for the Supreme Court to deny that branch of the motion of the defendant James S. McGown which was to vacate the prior order appointing a receiver.

Moreover, "[a] defendant who has failed to timely appear or answer the complaint must provide a reasonable excuse for the default and demonstrate a meritorious defense to the action, when ... moving to extend the time to answer or to compel the acceptance of an untimely answer" ( Lipp v. Port Auth. of N.Y. & N.J., 34 A.D.3d 649, 649, 824 N.Y.S.2d 671; see CPLR 3012[d]; 5015 [a][1]; Moriano v. Provident N.Y. Bancorp, 71 A.D.3d 747, 747, 899 N.Y.S.2d 246; 599 Ralph Ave. Dev., LLC v. 799 Sterling Inc., 34 A.D.3d 726, 726, 825 N.Y.S.2d 129). The determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court ( see Star Indus., Inc. v. Innovative Beverages, Inc., 55 A.D.3d 903, 904, 866 N.Y.S.2d 357; Antoine v. Bee, 26 A.D.3d 306, 306, 812 N.Y.S.2d 557).

Here, McGown offered no reasonable excuse for his failure to serve a timely answer in the action. His purported reliance upon alleged settlement negotiations is entirely unsubstantiated and does not constitute a reasonable excuse ( see Jamieson v. Roman, 36 A.D.3d 861, 862, 830 N.Y.S.2d 217...