U.S. Bank Nat'l Ass'n v. Stewart

• Decision Date: 18 July 2012
• Citation: 948 N.Y.S.2d 411,97 A.D.3d 740,2012 N.Y. Slip Op. 05626
• Parties: U.S. BANK NATIONAL ASSOCIATION, etc., respondent, v. Andrew STEWART, et al., appellants.
• Court: New York Supreme Court — Appellate Division

97 A.D.3d 740
948 N.Y.S.2d 411
2012 N.Y. Slip Op. 05626

U.S. BANK NATIONAL ASSOCIATION, etc., respondent,
v.
Andrew STEWART, et al., appellants.

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

July 18, 2012.

Andrew Stewart and Melissa Stewart, Westbury, N.Y., appellants pro se (one brief filed).

REINALDO E. RIVERA, J.P., RANDALL T. ENG, PLUMMER E. LOTT, and JEFFREY A. COHEN, JJ.

[97 A.D.3d 740]In an action to foreclose a mortgage, the defendants appeal from an order of the Supreme Court, Nassau County (Adams, J.), dated July 27, 2010, which denied their motion, inter alia, to vacate a judgment of foreclosure and sale dated September 7, 2007, entered upon their default in appearing or answering, and a stipulation of settlement dated December 4, 2008.

ORDERED that the order is affirmed, without costs or disbursements.

The Supreme Court properly denied that branch of the defendants' motion which was to vacate the judgment of foreclosure and sale dated September 7, 2007, entered upon their default in appearing or answering the complaint. A defendant seeking to vacate a default in appearing or answering must demonstrate a reasonable excuse for the default and a potentially

[948 N.Y.S.2d 412]

meritorious defense to the action ( seeCPLR 5015[a][1]; Deutsche Bank Natl. Trust Co. v. Luden, 91 A.D.3d 701, 701, 936 N.Y.S.2d 561;Fremont Inv. & Loan v. Bertram, 90 A.D.3d 988, 934 N.Y.S.2d 822;Citimortgage, Inc. v. Brown, 83 A.D.3d 644, 645, 919 N.Y.S.2d 894). Here, while the defendants initially alleged that copies of the summons and complaint were improperly served upon them, pursuant to a stipulation resolving that issue made in open court on December 4, 2008, they subsequently acknowledged proper service. Since the defendants failed to demonstrate a reasonable excuse for their default, it was unnecessary to determine whether they demonstrated the existence of a potentially meritorious defense ( see Tribeca Lending Corp. v. Correa, 92 A.D.3d 770, 771, 938 N.Y.S.2d 599;Wells Fargo Bank, N.A. v. Cervini, 84 A.D.3d 789, 790, 921 N.Y.S.2d 643).

Contrary to the defendants' contention, the Supreme Court also properly denied that branch of their motion which sought to vacate the stipulation of settlement ( see Reid v. C & S Realty Mgt., LLC, 94 A.D.3d 732, 941 N.Y.S.2d 509;see generally Hallock v. State of New York, 64 N.Y.2d 224, 230, 485 N.Y.S.2d 510, 474 N.E.2d 1178).

[97 A.D.3d 741]The defendants' remaining contentions are without merit.