Wells Fargo Bank v. Arratia

• Decision Date: 13 July 2022
• Docket Number: 2021-01423,Index No. 6370/09
• Citation: 2022 NY Slip Op 04579
• Parties: Wells Fargo Bank, N.A., respondent, v. Freddy Arratia, et al., appellants, et al., defendants.
• Court: New York Supreme Court — Appellate Division

2022 NY Slip Op 04579

Wells Fargo Bank, N.A., respondent,
v.
Freddy Arratia, et al., appellants, et al., defendants.

No. 2021-01423, Index No. 6370/09

Supreme Court of New York, Second Department

July 13, 2022

J. A. Sanchez-Dorta, Howard Beach, NY, for appellants.

Knuckles, Komosinski & Manfro, LLP, Elmsford, NY (Louis A. Levithan of counsel), for respondent.

VALERIE BRATHWAITE NELSON, J.P. ROBERT J. MILLER JOSEPH A. ZAYAS DEBORAH A. DOWLING, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendants Freddy Arratia and Monica Arratia appeal from an order of the Supreme Court, Queens County (Mojgan C. Lancman, J.), entered May 15, 2020. The order denied the motion of the defendant Monica Arratia pursuant to CPLR 5015(a)(1) and (3) to vacate a judgment of foreclosure and sale of the same court (Jeremy S. Weinstein, J.) entered April 10, 2018.

ORDERED that the appeal by the defendant Freddy Arratia is dismissed, without costs or disbursements, as that defendant is not aggrieved by the order appealed from (see CPLR 5511; Mixon v TBV, Inc., 76 A.D.3d 144, 156-157); and it is further, ORDERED that the order is affirmed on the appeal by the defendant Monica Arratia, without costs or disbursements.

In March 2009, the plaintiff commenced this action against the defendant Monica Arratia (hereinafter the defendant), among others, to foreclose a mortgage encumbering real property located in Queens. The defendant failed to appear or answer the complaint, and on April 10, 2018, a judgment of foreclosure and sale was entered upon her default. Thereafter, in September 2018, the defendant moved pursuant to CPLR 5015(a)(1) and (3) to vacate the judgment of foreclosure and sale. In an order entered May 15, 2020, the Supreme Court denied the motion, and the defendant appeals.

"A defendant seeking to vacate a judgment pursuant to CPLR 5015(a)(1) must demonstrate a reasonable excuse for the default and a potentially meritorious defense to the action" (Emigrant Sav. Bank v Burke, 199 A.D.3d 652, 652; see LaSalle Bank N.A. v Calle, 153 A.D.3d 801, 802; Deutsche Bank Natl. Trust Co. v Ramirez, 117 A.D.3d 674, 675). "'The determination of what constitutes a reasonable excuse lies within the Supreme Court's discretion, and the court has discretion to accept law office failure as a reasonable excuse'" (Bank of Am., N.A. v Murjani, 199 A.D.3d 630, 631, quoting Ki Tae Kim v Bishop, 156 A.D.3d 776, 777; see CPLR 2005; U.S. Bank N.A. v...