Reverse Mortg. Solutions, Inc. v. Lawrence

• Decision Date: 02 December 2021
• Docket Number: 531918
• Citation: 200 A.D.3d 1146,159 N.Y.S.3d 526
• Parties: REVERSE MORTGAGE SOLUTIONS, INC., Appellant, v. Ronald G. LAWRENCE Jr., Respondent, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

200 A.D.3d 1146
159 N.Y.S.3d 526

REVERSE MORTGAGE SOLUTIONS, INC., Appellant,
v.
Ronald G. LAWRENCE Jr., Respondent, et al., Defendants.

531918

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

Calendar Date: October 15, 2021
Decided and Entered: December 2, 2021

159 N.Y.S.3d 527

Robertson, Anschutz, Schneid, Crane & Partners, PLLC, Westbury (Edward Rugino of counsel), for appellant.

Law Office of Ellen S. Ross, Johnstown (Ellen S. Ross of counsel), for respondent.

Before: Egan Jr., J.P., Clark, Aarons, Pritzker and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER

Egan Jr., J.P.

Appeal from an order of the Supreme Court (Kupferman, J.), entered September 5, 2019 in Fulton County, which granted defendant Ronald G. Lawrence Jr.’s motion to, among other things, vacate a judgment of foreclosure and sale.

In 2012, defendant Ronald G. Lawrence Jr. (hereinafter defendant) executed a home equity conversion mortgage, also known as a reverse mortgage, to secure a note for a maximum principal amount of $120,000. The terms required defendant to pay all taxes and other charges on the mortgaged property and provided that, should he fail to do so, the lender could make the payments and, with the approval of the Secretary of Housing and Urban Development, require immediate payment in full. Defendant failed to pay certain taxes on the property and, in 2015, plaintiff, the assignee of the mortgage, made the required payments and accelerated payment of the entire debt. Plaintiff then commenced this action to foreclose on the mortgage and, upon defendant's default, obtained a judgment of foreclosure and sale in 2018. The ensuing referee's sale ended with plaintiff purchasing the property as the highest bidder.

Defendant thereafter moved to, among other things, vacate the judgment of foreclosure and sale and set aside the referee's deed. After hearing oral argument on the motion, Supreme Court (J. Sise, J.) rendered a decision from the bench in which it determined that defendant was entitled to vacatur and restored the matter to the trial calendar. Plaintiff appeals from the written order of Supreme Court (Kupferman, J.) effectuating that decision.

We affirm. First, Supreme Court and the parties primarily addressed defendant's motion as one to vacate a default pursuant to CPLR 5015(a)(1), which requires defendant "to establish a reasonable excuse for the default and the existence of a meritorious defense" ( Qiang Tu v. Li Shen, 190 A.D.3d 1125, 1126, 139 N.Y.S.3d 711 [2021] ; see Bank of N.Y. v. Richards, 192 A.D.3d 1228, 1229, 143 N.Y.S.3d 708 [2021] ). A request for vacatur under CPLR 5015(a)(1) may also be deemed as one pursuant to CPLR 317, however, which does not demand a reasonable excuse for the default and entitles the moving party to vacatur within a year of learning of the entry of a judgment where he or she was not personally served with process, did not receive notice of the action in time to defend and has a meritorious defense (see CPLR 317 ; Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co., 67 N.Y.2d 138, 142–143, 501 N.Y.S.2d 8, 492 N.E.2d 116 [1986] ; Gonzalez v. City of New York, 65 A.D.3d 569, 570, 883 N.Y.S.2d 599 [2009] ; Executive Motor Car Inc. v. Allen, 211 A.D.2d 871, 871–872, 621 N.Y.S.2d 212 [1995] ;

159 N.Y.S.3d 528

Pena v. Mittleman, 179 A.D.2d 607, 609–610, 579 N.Y.S.2d 359 [1992] ).

Defendant here was not personally served with process, but the record contains an affidavit of service that constitutes prima facie evidence that he was properly served via personal delivery of the summons and complaint to his roommate and mailing of an additional copy to him (see CPLR 308[2] ; Cotter v. Dukharan, 110 A.D.3d 1331, 1332–1333, 973 N.Y.S.2d 494 [2013] ). He denied learning about the action from his roommate, and his roommate averred...