E. Sav. Bank, FSB v. Charles

• Decision Date: 13 February 2013
• Parties: EASTERN SAVINGS BANK, FSB, respondent, v. Hermite CHARLES, et al., appellants, et al., defendants.
• Court: New York Supreme Court — Appellate Division

103 A.D.3d 683
959 N.Y.S.2d 704
2013 N.Y. Slip Op. 00892

EASTERN SAVINGS BANK, FSB, respondent,
v.
Hermite CHARLES, et al., appellants, et al., defendants.

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

Feb. 13, 2013.

Rubin & Licatesi, P.C., Garden City, N.Y. (Richard H. Rubin of counsel), for appellants.

Kriss & Feuerstein, LLP, New York, N.Y. (Jerold C. Feuerstein, Jennifer A. Tolston, and Kristine L. Grinberg of counsel), for respondent.

REINALDO E. RIVERA, J.P., PLUMMER E. LOTT, SHERI S. ROMAN, and SANDRA L. SGROI, JJ.

[103 A.D.3d 683]In an action to foreclose a mortgage, the defendants Hermite Charles and Evelyn Thenor appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Sweeney, J.), dated December 12, 2011, as denied that branch of their motion which was to vacate an amended order of the same court (Jackson, J.), dated December 9, 2010, denying their [103 A.D.3d 684]motion to vacate, inter alia, a judgment of foreclosure and sale dated September 8, 2009, entered upon their failure to appear at a hearing to determine the validity of service of process.

ORDERED that the order dated December 12, 2011, is affirmed insofar as appealed from, with costs.

To vacate an order entered upon their failure to appear at the hearing to determine the validity of service of process, the appellants were required to demonstrate both a reasonable excuse for their default and the existence of a potentially meritorious position at the hearing ( seeCPLR 5015[a][1]; Cohen v. Romanoff, 83 A.D.3d 989, 924 N.Y.S.2d 796;

[959 N.Y.S.2d 705]

Simpson v. Tommy Hilfiger U.S.A., Inc., 48 A.D.3d 389, 392, 850 N.Y.S.2d 629). The determination of what constitutes a reasonable excuse for a default lies within the sound discretion of the Supreme Court ( see Glukhman v. Bay 49th St. Condominium, LLC, 100 A.D.3d 594, 595, 953 N.Y.S.2d 304). “Although a court has the discretion to accept law office failure as a reasonable excuse ( seeCPLR 2005), a conclusory, undetailed, and uncorroborated claim of law office failure does not amount to a reasonable excuse” ( White v. Daimler Chrysler Corp., 44 A.D.3d 651, 651, 843 N.Y.S.2d 168;see Matter of ELRAC, Inc. v. Holder, 31 A.D.3d 636, 636–637, 817 N.Y.S.2d 916).

Here, the appellants' claim of law office failure was unsubstantiated and, under the circumstances presented, did not constitute a reasonable excuse for their default ( see Wei Hong Hu v. Sadiqi, 83 A.D.3d 820, 822, 921...