Midfirst Bank v. Al-Rahman
| Decision Date | 15 February 2011 |
| Parties | MIDFIRST BANK, etc., respondent, v. Muhammad A. AL-RAHMAN, et al., appellants, et al., defendants. |
| Court | New York Supreme Court — Appellate Division |
81 A.D.3d 797
MIDFIRST BANK, etc., respondent,
v.
Muhammad A. AL-RAHMAN, et al., appellants, et al., defendants.
Supreme Court, Appellate Division, Second Department, New York.
Feb. 15, 2011.
G. Wesley Simpson, P.C., Brooklyn, N.Y., for appellants.
Steven J. Baum, P.C., Buffalo, N.Y. (Timothy P. Seibold of counsel), for respondent.
In an action to foreclose a mortgage, the defendants Muhammed A. Al-Rahman, Joyce Elliston, "John" Al-Rahman, and Catherine Al-Rahman appeal from an order of the Supreme Court, Orange County (McGuirk, J.), dated December 3, 2009, which denied their motion, inter alia, to vacate a judgment of foreclosure and sale of the same court entered April 23, 2009, upon their failure to answer the complaint or appear in the action.
ORDERED that the order is affirmed, with costs.
A defendant who seeks to extend the time to appear or to compel acceptance of an untimely answer must provide a reasonable excuse for the default and show a potentially meritorious defense ( see Deutsche Bank Natl. Trust Co. v. Rudman, 80 A.D.3d 651, 914 N.Y.S.2d 672; Maspeth Fed. Sav. & Loan Assn. v. McGown, 77 A.D.3d 889, 909 N.Y.S.2d 403). Here, the appellants failed to demonstrate a reasonable excuse for their default ( see Tribeca Lending Corp. v. Crawford, 79 A.D.3d 1018, 1020). Since the appellants failed to demonstrate a reasonable excuse, it is unnecessary to consider whether they demonstrated the existence
of a potentially meritorious defense ( see Deutsche Bank Natl. Trust Co. v. Rudman, 80 A.D.3d 651, 914 N.Y.S.2d 672; Maspeth Fed. Sav. & Loan Assn. v. McGown, 77 A.D.3d at 889, 909 N.Y.S.2d 403). Accordingly, the Supreme Court properly denied that branch of the appellants' motion which was pursuant to CPLR 5015(a)(1) to vacate a judgment of foreclosure and sale.The Supreme Court also properly denied that branch of the appellants' motion which was pursuant to CPLR 5015(a)(3) to vacate the judgment of foreclosure and sale, as they "failed to establish that the plaintiff procured the judgment of foreclosure and sale by fraud, misrepresentation, or other misconduct" ( Tribeca Lending Corp. v. Crawford, 79 A.D.3d at 1020; see Feldstein v. Rounick, 295 A.D.2d 398, 743 N.Y.S.2d 735).
Further, the plaintiff's alleged failure to comply with
CPLR 3215 (f) did not render the judgment a nullity, or warrant excusing the appellants' default in the absence of a reasonable excuse or a potentially...To continue reading
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