PNC Bank, Nat'l Ass'n v. Bannister
| Decision Date | 23 May 2018 |
| Docket Number | Index No. 35130/11,2016–01411 |
| Citation | 161 A.D.3d 1114,77 N.Y.S.3d 452 |
| Parties | PNC BANK, NATIONAL ASSOCIATION, respondent, v. Jerome A. BANNISTER, appellant, et al., defendants. |
| Court | New York Supreme Court — Appellate Division |
161 A.D.3d 1114
77 N.Y.S.3d 452
PNC BANK, NATIONAL ASSOCIATION, respondent,
v.
Jerome A. BANNISTER, appellant, et al., defendants.
2016–01411
Index No. 35130/11
Supreme Court, Appellate Division, Second Department, New York.
Argued—January 11, 2018
May 23, 2018
Ronald D. Weiss, P.C., Melville, NY, for appellant.
McGlinchey Stafford, New York, N.Y. (Mitra Paul Singh and Victor L. Matthews of counsel), for respondent.
REINALDO E. RIVERA, J.P., ROBERT J. MILLER, VALERIE BRATHWAITE NELSON, ANGELA G. IANNACCI, JJ.
DECISION & ORDER
In an action to foreclose a mortgage, the defendant Jerome A. Bannister appeals from an order of the Supreme Court, Suffolk County (Daniel Martin, J.), dated October 5, 2015. The order denied the motion of the defendants Jerome A. Bannister and Harriette L. Bannister, inter alia, to vacate a judgment of foreclosure and sale of the same court entered July 8, 2014, upon their failure to answer the complaint.
ORDERED that the order is affirmed, with costs.
The plaintiff commenced this mortgage foreclosure action against, among others, the defendants Jerome A. Bannister and Harriette L. Bannister (hereinafter together the Bannisters). It is undisputed that the Bannisters defaulted in answering the complaint. In September 2013, the plaintiff's
motion for a default judgment and an order of reference was granted without opposition. On July 8, 2014, the Supreme Court entered a judgment of foreclosure and sale, and the subject property was sold at auction on October 2, 2014.
On May 1, 2015, the Bannisters moved, in effect, pursuant to CPLR 5015(a)(1) and (4) to vacate the judgment of foreclosure and sale, to set aside the foreclosure sale of the property, and to dismiss the complaint insofar as asserted against them or, in the alternative, to extend the time to file an answer. In an order dated October 5, 2015, the Supreme Court denied the Bannisters' motion. Jerome A. Bannister appeals.
"Where, as here, a defendant seeking to vacate a default judgment raises a jurisdictional objection pursuant to CPLR 5015(a)(4), and seeks a discretionary vacatur pursuant to CPLR 5015(a)(1), a court is required to resolve the jurisdictional question before determining whether it is appropriate to grant a discretionary vacatur of the default under CPLR 5015(a)(1)" ( HSBC Bank USA, N.A. v. Dalessio, 137 A.D.3d 860, 862–863, 27 N.Y.S.3d 192 [internal quotation marks omitted]; see Wachovia Bank, N.A. v. Greenberg, 138 A.D.3d 984,...
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...excuse for their default, since the only excuse proffered was that they were not served with process (see PNC Bank, N.A. v. Bannister, 161 A.D.3d at 1116, 77 N.Y.S.3d 452 ; Bank of N.Y. v. Krausz, 144 A.D.3d 718, 718, 41 N.Y.S.3d 84 ; Deutsche Bank Natl. Trust Co. v. Pietranico, 102 A.D.3d ......
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