Bank of N.Y. v. DeJohn

170 N.Y.S.3d 473 (Mem)

BANK OF NEW YORK, etc., respondent,

v.John DEJOHN, etc., appellant, et al., defendants.

2019–01361, 2019–01362

Index No. 27967/08

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

Submitted—May 13, 2022

July 13, 2022

Irwin Popkin, Melville, NY, for appellant.

Eckert Seamans Cherin & Mellott, LLC, White Plains, NY (Kenneth Flickinger of counsel), for respondent.

BETSY BARROS, J.P., CHERYL E. CHAMBERS, ROBERT J. MILLER, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant John DeJohn appeals from two orders of the Supreme Court, Suffolk County (Howard H. Heckman, Jr., J.), both dated October 10, 2019. The first order, insofar as appealed from, granted that branch of the plaintiff's motion, denominated as one for summary judgment on the complaint insofar as asserted against the defendant John DeJohn, but which was, in actuality, one for leave to enter a default judgment against that defendant, and granted that branch of the plaintiff's motion which was for an order of reference. The second order, insofar as appealed from, granted the same relief to the plaintiff and appointed a referee to ascertain and compute the amount due to the plaintiff.

ORDERED that the orders are affirmed insofar as appealed from, with one bill of costs.

Although denominated as one for summary judgment on the complaint insofar as asserted against the defendant John DeJohn (hereinafter the defendant), that branch of the plaintiff's motion was, in actuality, one for leave to enter a default judgment against the defendant. A plaintiff moving for leave to enter a default judgment against a defendant must submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defendant's failure to answer or appear (see CPLR 3215[f] ; Vanderbilt Mtge. & Fin., Inc. v. Ammon, 179 A.D.3d 1138, 1141, 118 N.Y.S.3d 125 ; HSBC Bank USA, N.A. v. Clayton, 146 A.D.3d 942, 944, 45 N.Y.S.3d 543 ). "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" ( Deutsche Bank Natl. Trust Co. v. Hall, 185 A.D.3d 1006, 1008–1009, 129 N.Y.S.3d 146 [internal quotation marks omitted]).

Here, the plaintiff made the required showing (see NYC REH, Inc. v. Mizrahi, 204 A.D.3d 1023, 165 N.Y.S.3d 369 ). In opposition to the motion, the defendant failed to show that...