Summary
In Luden, the Second Department found circumstances similar to those here acceptable where the attorney prepared an answer which the defendants signed " but, unbeknownst to the defendants, the attorney failed to file and serve the answer until some two months later" (supra).
Summary of this case from Deutsche Bank Nat'l Trust Co. v. VasquezOpinion
2012-01-17
DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., respondent, v. Neil LUDEN, et al., appellants.
Enza Cammarasana, Northport, N.Y., for appellants. Cullen and Dykman, LLP, Garden City, N.Y. (Ariel E. Ronneburger of counsel), for respondent.
Enza Cammarasana, Northport, N.Y., for appellants. Cullen and Dykman, LLP, Garden City, N.Y. (Ariel E. Ronneburger of counsel), for respondent.
In an action to foreclose a mortgage, the defendants appeal from an order of the Supreme Court, Nassau County (Adams, J.), entered July 2, 2010, which denied their motion to vacate a judgment of foreclosure and sale of the same court entered November 21, 2005, entered upon their default in answering or appearing.
ORDERED that the order is reversed, on the facts and in the exercise of discretion, with costs, and the defendants' motion to vacate the judgment of foreclosure and sale entered November 21, 2005, entered upon their default in answering or appearing, is granted.
“A foreclosure action is equitable in nature and triggers the equitable powers of the court” ( Mortgage Elec. Registration Sys., Inc. v. Horkan, 68 A.D.3d 948, 948, 890 N.Y.S.2d 326; see Norstar Bank v. Morabito, 201 A.D.2d 545, 546, 607 N.Y.S.2d 426). Pursuant to CPLR 5015(a), “ ‘[t]he court which rendered a judgment or order may relieve a party from it upon such terms as may be just’ ” ( Katz v. Marra, 74 A.D.3d 888, 890, 905 N.Y.S.2d 204, quoting CPLR 5015[a]; see Woodson v. Mendon Leasing Corp., 100 N.Y.2d 62, 68, 760 N.Y.S.2d 727, 790 N.E.2d 1156). A defendant seeking to vacate a default in answering or appearing pursuant to CPLR 5015(a)(1) must demonstrate a reasonable excuse for the default and a potentially meritorious defense to the action (see Pursoo v. Ngala–El, 89 A.D.3d 712, 931 N.Y.S.2d 914; Citimortgage, Inc. v. Brown, 83 A.D.3d 644, 645, 919 N.Y.S.2d 894). The court has the discretion to accept law office failure as a reasonable excuse (see CPLR 2005; Kohn v. Kohn, 86 A.D.3d 630, 928 N.Y.S.2d 55; Campbell–Jarvis v. Alves, 68 A.D.3d 701, 702, 889 N.Y.S.2d 257). Here, the detailed and uncontroverted affidavit of the defendant Neil Luden set forth a reasonable excuse for the defendants' default (see Papandrea v. Acevedo, 54 A.D.3d 915, 916, 864 N.Y.S.2d 138). He explained, inter alia, that he promptly retained legal counsel after being served with the summons and complaint, and that the attorney prepared an answer which the defendants signed, but, unbeknownst to the defendants, the attorney failed to file and serve the answer until some two months later resulting in the answer being returned as untimely by the plaintiff's counsel. Furthermore, the defendants demonstrated that they had a potentially meritorious defense based upon the defense of payment, as well as upon the purported misapplication of the defendants' payments by the loan servicer.
The plaintiff's remaining contentions either are without merit or have been rendered academic in light of our determination.
Accordingly, the Supreme Court improvidently exercised its discretion in denying the defendants' motion to vacate the judgment of foreclosure and sale entered November 21, 2005, entered upon their default in answering or appearing in the action.