One W. Bank, FSB v. Valdez

• Decision Date: 06 May 2015
• Docket Number: 2013-07086
• Citation: 8 N.Y.S.3d 419,2015 N.Y. Slip Op. 03813,128 A.D.3d 655
• Parties: ONE WEST BANK, FSB, respondent, v. Martha VALDEZ, appellant, et al., defendants.
• Court: New York Supreme Court — Appellate Division

128 A.D.3d 655

8 N.Y.S.3d 419

2015 N.Y. Slip Op. 03813

ONE WEST BANK, FSB, respondent

v.Martha VALDEZ, appellant, et al., defendants.

2013-07086

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

May 6, 2015.

Auciello Law Group, P.C., Brooklyn, N.Y. (Anthony J. Auciello of counsel), for appellant.

PETER B. SKELOS, J.P., RUTH C. BALKIN, SHERI S. ROMAN, and SYLVIA O. HINDS–RADIX, JJ.

Opinion

In an action to foreclose a mortgage, the defendant Martha Valdez appeals, as limited by her brief, from stated portions of an order of the Supreme Court, Queens County (Rios, J.), entered May 20, 2013, which, inter alia, denied her motion pursuant to CPLR 3012(d) to compel the plaintiff to accept her late answer.

ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.

In April 2011, the plaintiff commenced this action to foreclose a mortgage, alleging that the defendant Martha Valdez defaulted on her payment obligations under the note secured by the mortgage. Valdez failed to timely appear or answer the complaint (see CPLR 320[a] ; 3012[c] ). In May 2012, Valdez filed an answer, which the plaintiff rejected as untimely. Subsequently, Valdez moved to dismiss the complaint insofar as asserted against her based on, among other things, lack of standing. Valdez separately moved to compel the plaintiff to accept her late answer. The Supreme Court denied the motions.

“To extend the time to answer the complaint and to compel the plaintiff to accept an untimely answer as timely, a defendant must provide a reasonable excuse for the delay and demonstrate a potentially meritorious defense to the action” (Mannino Dev., Inc. v. Linares, 117 A.D.3d 995, 995, 986 N.Y.S.2d 578 ; see CPLR 3012[d] ; HSBC Bank USA, N.A. v. Lafazan, 115 A.D.3d 647, 648, 983 N.Y.S.2d 32 ). “The determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court” (Maspeth Fed. Sav. & Loan Assn. v. McGown, 77 A.D.3d 889, 890, 909 N.Y.S.2d 403 ; see Mannino Dev., Inc. v. Linares, 117 A.D.3d at 995, 986 N.Y.S.2d 578 ; JP Morgan Chase Bank, N.A. v. Palma, 114 A.D.3d 645, 645, 979 N.Y.S.2d 832 ).

Here, the Supreme Court providently exercised its discretion in determining that Valdez's conclusory and unsubstantiated allegations of neglect by her prior counsel did not constitute a reasonable excuse for her delay in answering the complaint (see Wood v. Tuttle, 106 A.D.3d 1393, 1394, 968 N.Y.S.2d 613 ; HSBC Bank USA N.A. v. Wider, 101 A.D.3d 683, 683, 955 N.Y.S.2d 202, 957 N.Y.S.2d 125; Wells Fargo Bank, N.A. v. Cervini, 84 A.D.3d 789, 789, 921 N.Y.S.2d 643 ; Desiderio v. Devani,

24 A.D.3d 495, 496, 806 N.Y.S.2d 240 ). Since Valdez failed to offer a reasonable excuse, it is not necessary to consider whether she sufficiently demonstrated the...