Weidler v. MERSCORP Holdings, Inc.

208 A.D.3d 922

174 N.Y.S.3d 735

Diane WEIDLER, appellant,

v.MERSCORP HOLDINGS, INC., etc., et al., respondents, et al., defendants.

2018–08710

Index No. 612597/16

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

Submitted—April 26, 2022

August 31, 2022

Kupillas Unger & Benjamin, Great Neck, NY (Jeffrey Benjamin of counsel), for appellant.

McCalla Raymer Leibert Pierce LLC, New York, NY (Charles H. Jeanfreau of counsel), for respondents.

MARK C. DILLON, J.P., SHERI S. ROMAN, JOSEPH J. MALTESE, DEBORAH A. DOWLING, JJ.

DECISION & ORDER

In an action pursuant to RPAPL article 15 to quiet title to real property, the plaintiff appeals from an order of the Supreme Court, Suffolk County (John H. Rouse, J.), dated June 7, 2018. The order denied the plaintiff's motion pursuant to CPLR 5015(a) to vacate an order of the same court dated January 8, 2018, granting the unopposed motion of the defendants Mortgage Electronic Recording Systems, Inc., incorrectly sued herein as MERSCORP Holdings, Inc., Aurora Loan Services, LLC, and Nationstar Mortgage, LLC, for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order dated June 7, 2018, is affirmed, with costs.

On April 30, 2007, Diane Weidler executed a note promising to repay a loan in the amount of $440,000, secured by a mortgage on certain real property located in Suffolk County. On or about July 30, 2008, Mortgage Electronic Recording Systems, Inc. (hereinafter MERS), incorrectly sued herein as MERSCORP Holdings, Inc., commenced an action to foreclose the mortgage against, among others, Weidler, alleging that Weidler had defaulted on the mortgage by failing to make the payment due on April 1, 2008, and all payments due thereafter. In the complaint, MERS elected to declare immediately due and payable the entire unpaid balance of the principal due and owing on the note. On or about August 27, 2012, and January 25, 2013, the attorneys for MERS and Weidler executed stipulations voluntarily discontinuing the foreclosure action without prejudice and canceling the notice of pendency.

On or about August 22, 2016, Weidler commenced this action pursuant to RPAPL article 15 to quiet title to real property against, among others, MERS, Aurora Home Loan Services, LLC, and Nationstar Mortgage, LLC (hereinafter collectively the defendants). In the complaint, Weidler alleged that since the mortgage was accelerated on July 30, 2008, upon the commencement of the foreclosure action, the six-year statute of limitations expired on July 30, 2014.

The defendants moved for summary judgment dismissing the complaint insofar as asserted against them. Weidler did not oppose the motion. In an order dated January 8, 2018, the Supreme Court granted the defendants’ unopposed motion and directed dismissal of the complaint insofar as asserted against them.

Thereafter, Weidler moved pursuant to CPLR 5015(a) to vacate the order dated January 8, 2018, asserting, inter alia, that her failure to oppose the defendants’ motion for summary judgment dismissing the complaint insofar as asserted against them was the result of inadvertent law office failure. In an order dated June 7, 2018, the Supreme Court denied Weidler's motion. Weidler appeals.

In order to vacate a default in opposing a motion, the moving party is required to demonstrate a reasonable excuse for his or her default and a potentially meritorious opposition to the motion (see id. § 5015[a][1] ; U.S. Bank N.A. v. Jackman, 192 A.D.3d 1180, 1180, 141 N.Y.S.3d 342 ; Nationstar Mtge., LLC v. Ramnarine, 172 A.D.3d 886, 886, 100 N.Y.S.3d 278 ). "The determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court" ( Nationstar Mtge., LLC v. Ramnarine, 172 A.D.3d at 886, 100 N.Y.S.3d 278 ). A party attributing...