Bank of N.Y. Mellon v. Lee

201 A.D.3d 852

162 N.Y.S.3d 98

BANK OF NEW YORK MELLON, etc., respondent,

v.Curtis LEE, etc., appellant, et al., defendants.

2020–01308

Index No. 705681/18

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

Submitted—December 6, 2021

January 26, 2022

Felton & Associates, Brooklyn, NY (Regina Felton of counsel), for appellant.

McCalla Raymer Leibert Pierce, New York, NY (Margaret S. Stefandl of counsel), for respondent.

FRANCESCA E. CONNOLLY, J.P., SYLVIA O. HINDS–RADIX, SHERI S. ROMAN, DEBORAH A. DOWLING, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Curtis Lee appeals from an order and judgment of foreclosure and sale (one paper) of the Supreme Court, Queens County (Cheree´ A. Buggs, J.), entered January 21, 2020. The order and judgment of foreclosure of sale, upon an order of the same court entered January 30, 2019, inter alia, granting those branches of the plaintiff's motion which were for leave to enter a default judgment against the defendant Curtis Lee and for an order of reference, and denying that defendant's cross motion, in effect, to vacate his default in appearing or answering the complaint and for leave to serve a late answer, and an order of the same court also entered January 30, 2019, granting the same relief to the plaintiff and referring the matter to a referee to compute the amount due to the plaintiff, inter alia, directed the sale of the subject property.

ORDERED that the order and judgment of foreclosure and sale is affirmed, with costs.

In April 2018, the plaintiff commenced this action against the defendant Curtis Lee (hereinafter the defendant), among others, to foreclose a mortgage on residential property in Saint Albans. The defendant failed to appear or answer the complaint. In July 2018, the plaintiff moved, inter alia, for leave to enter a default judgment against the defendant and for an order of reference. The defendant cross-moved, in effect, to vacate his default in appearing or answering the complaint and for leave to serve a late answer. In an order entered January 30, 2019, the Supreme Court granted the plaintiff's motion and denied the defendant's cross motion. In another order entered January 30, 2019, the court granted the same relief to the plaintiff and referred the matter to a referee to compute the amount due to the plaintiff. Thereafter, the court issued an order and judgment of foreclosure and sale, inter alia, directing the sale of the subject property. The defendant appeals.

"On a motion for leave to enter a default judgment against a defendant based on the failure to answer or appear, a plaintiff must submit proof of service of the summons and complaint, proof of the facts constituting the cause of action, and proof of the defendant's default" ( L & Z Masonry Corp. v. Mose, 167 A.D.3d 728, 729, 90 N.Y.S.3d 92 ; see CPLR 3215[f] ; HSBC Bank USA, N.A. v. Diallo, 190 A.D.3d 959, 960, 141 N.Y.S.3d 72 ). "To defeat a facially sufficient CPLR 3215 motion, a defendant must show either that there was no default, or that [he or she] had a reasonable excuse for [his or her] delay and a potentially meritorious defense" ( Liberty County Mut. v. Avenue I Med., P.C., 129 A.D.3d 783, 785, 11 N.Y.S.3d 623 ; see Clarke v. Liberty Mut. Fire Ins. Co., 150 A.D.3d 1192, 1195, 55 N.Y.S.3d 400 ).

Here, the plaintiff met its burden by submitting evidence of service of the summons and complaint, evidence of the facts constituting the cause of action, and evidence of the defendant's default (see HSBC Bank USA, N.A. v. Diallo, 190 A.D.3d at 960, 141 N.Y.S.3d 72 ). In opposition, the defendant failed to show that there was no default, or that he had a reasonable excuse for his delay in answering and a potentially meritorious defense to the action (see Liberty County Mut. v. Avenue I Med., P.C., 129 A.D.3d at 785, 11 N.Y.S.3d 623 ).

The defendant asserted, as an excuse for his default, that he was waiting for notification of a mandatory settlement conference pursuant to CPLR 3408. However, under the statute, a mandatory settlement conference is...