Wells Fargo Bank, Nat'l Ass'n v. Hyun Jung Kim

189 A.D.3d 1673

135 N.Y.S.3d 267 (Mem)

WELLS FARGO BANK, NATIONAL ASSOCIATION, etc., respondent,

v.HYUN JUNG KIM, appellant, et al., defendants.

2019–03504

Index No. 709048/15

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

Argued—September 11, 2020

December 30, 2020

Solomon Zabrowsky, New York, NY, for appellant.

Greenberg Traurig, LLP, New York, N.Y. (Adam P. Hartley and Patrick G. Broderick of counsel), for respondent.

WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, VALERIE BRATHWAITE NELSON, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Hyun Jung Kim appeals from a judgment of foreclosure and sale of the Supreme Court, Queens County (Allan B. Weiss, J.), entered January 17, 2019. The judgment of foreclosure and sale, upon an order of the same court entered August 14, 2018, granting the plaintiff's motion for a judgment of foreclosure and sale and denying the cross motion of the defendant Hyun Jung Kim, in effect, to vacate an order of reference of the same court entered May 16, 2017, upon her failure to appear or answer the complaint and for leave to serve a late answer, inter alia, directed the sale of the subject property.

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

The plaintiff commenced this action to foreclose a mortgage against, among others, the defendant Hyun Jung Kim (hereinafter the defendant). On May 16, 2017, the Supreme Court entered an order of reference upon the defendant's failure to appear or answer the complaint. Subsequently, the plaintiff moved for a judgment of foreclosure and sale. The defendant cross-moved, in effect, to vacate the order of reference and for leave to serve a late answer. In support of the cross motion, the defendant submitted an affidavit in which she averred, inter alia, that she did not realize that she was supposed to submit an answer to the complaint. In an order entered August 14, 2018, the court granted the plaintiff's motion and denied the defendant's cross motion. A judgment of foreclosure and sale was entered on January 17, 2019. The defendant appeals.

A defendant seeking to vacate a default in appearing in the action or answering the complaint must show both a reasonable excuse for the default and a potentially meritorious defense (see CPLR 5015[a][1] ; U.S. Bank N.A. v. Crawford, 174 A.D.3d 762, 763, 105 N.Y.S.3d 536 ; US Bank N.A. v. Dedomenico, 162 A.D.3d 962, 964, 80 N.Y.S.3d 278 ). Here, the defendant's proffered excuse that she was unaware of the need to answer the complaint was insufficient to demonstrate a reasonable excuse for the default (see U.S. Bank N.A. v. Crawford, 174 A.D.3d at 763, 105 N.Y.S.3d 536 ; Wells Fargo Bank, NA v. Besemer, 131 A.D.3d 1047, 1049, 16 N.Y.S.3d 819 ; U.S. Bank N.A. v. Slavinski, 78 A.D.3d 1167, 912 N.Y.S.2d 285 ). The conclusory assertion of the defendant's attorney that the defendant's default was based, in part, on the fact that the defendant was not completely fluent in English was improperly asserted for the first time in reply, not supported by any evidence in the record, and, ultimately, merely an extension of the argument that the defendant lacked understanding of the legal process, which was insufficient to demonstrate a reasonable excuse for the default (see U.S. Bank N.A. v. Crawford, 174 A.D.3d at 763, 105 N.Y.S.3d 536 ; see also Abdulayev v. Yadgarov, 105 A.D.3d 877, 964 N.Y.S.2d 545 ; Holcomb v. TWR Express, Inc., 11 A.D.3d 513, 514, 782 N.Y.S.2d 840 ). As ...