CIT Bank, N.A. v. Francis

188 A.D.3d 792

136 N.Y.S.3d 87

CIT BANK, N.A., etc., respondent,

v.Paul FRANCIS, et al., appellants, et al., defendants.

2018–1230

Index No. 16492/08

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

Submitted—June 8, 2020

November 12, 2020

Petroff Amshen LLP, Brooklyn, NY (Serge F. Petroff, James Tierney, and Steven Amshen of counsel), for appellants.

Frenkel Lambert Weiss Weisman & Gordon, LLP, Bay Shore, NY (Keith L. Abramson of counsel), for respondent.

MARK C. DILLON, J.P., JOHN M. LEVENTHAL, JEFFREY A. COHEN, HECTOR D. LASALLE, JJ.

DECISION & ORDER

In an action, inter alia, to foreclose a mortgage, the defendants Paul Francis and Geneva Francis appeal from an order of the Supreme Court, Kings County (Noach Dear, J.), dated June 13, 2018. The order denied the motion of those defendants, inter alia, pursuant to CPLR 5015(a) to vacate an order of the same court (Yvonne Lewis, J.) dated March 20, 2015, granting the plaintiff's unopposed motion, inter alia, for summary judgment on the first cause of action, and an order and judgment of foreclosure and sale (one paper) of the same court (Noach Dear, J.) dated January 19, 2016.

ORDERED that the order dated June 13, 2018, is affirmed, with costs.

The plaintiff's predecessor in interest commenced this action against, among others, the defendants Paul Francis and Geneva Francis (hereinafter together the defendants), inter alia, to foreclose a mortgage on property to which the defendants claim a right of ownership. The defendants answered the complaint. In July 2014, the plaintiff moved, inter alia, for summary judgment on the first cause of action and for an order of reference. The defendants failed to oppose the motion, and in an order dated March 20, 2015, the Supreme Court granted the plaintiff's motion on default. In November 2015, the plaintiff moved, inter alia, for a judgment of foreclosure and sale. The defendants, once again, failed to oppose the motion. In an order and judgment of foreclosure and sale dated January 19, 2016, the court granted the plaintiff's motion and directed the sale of the subject property. The defendants subsequently moved, inter alia, pursuant to CPLR 5015(a) to vacate the order dated March 20, 2015, and the order and judgment of foreclosure and sale. In an order dated June 13, 2018, the court denied the defendants' motion. The defendants appeal.

A party seeking to vacate an order entered upon his or her default in opposing a motion must demonstrate both a reasonable excuse for the default and a potentially meritorious opposition to the motion (see CPLR 5015[a][1] ; Santos v. Penske Truck Leasing Co., 105 A.D.3d 1029, 964 N.Y.S.2d 207 ; Political Mktg., Int'l, Inc. v. Jaliman, 67 A.D.3d 661, 661–662, 888 N.Y.S.2d 552 ). "The determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court" ( Deutsche Bank Natl. Trust Co. v. Saketos, 158 A.D.3d 610, 612, 72 N.Y.S.3d 167 [internal quotation marks omitted] ). "While ‘law office failure’ may under certain circumstances constitute a reasonable excuse for a default and thus justify the vacatur of a prior determination of the court, there must be detailed allegations of fact which explain the reason for such a failure" ( Morris v. Metropolitan Transp. Auth., 191 A.D.2d 682, 683, 595 N.Y.S.2d 539.).

We agree with the Supreme Court's determination to deny the defendants' motion, inter alia, pursuant to CPLR 5015(a) to vacate the order dated March 20, 2015, and the order and...