Morgan Stanley Mortgage Loan Trust (2007-8XS)v.Harding

Supreme Court, Appellate Division, Second Department, New York.Jul 6, 2016
35 N.Y.S.3d 235 (N.Y. App. Div. 2016)
35 N.Y.S.3d 235141 A.D.3d 5112016 N.Y. Slip Op. 5363

07-06-2016

MORGAN STANLEY MORTGAGE LOAN TRUST (2007–8XS), etc., respondent, v. Teckla HARDING, appellant, et al., defendants.

Law Offices of Shirley J. Spira, P.C., New York, NY, for appellant.


Law Offices of Shirley J. Spira, P.C., New York, NY, for appellant.

REINALDO E. RIVERA, J.P., SHERI S. ROMAN, JOSEPH J. MALTESE, and COLLEEN D. DUFFY, JJ.

Opinion In an action to foreclose a mortgage, the defendant Teckla Harding appeals (1) from an order of the Supreme Court, Queens County (Strauss, J.), entered December 6, 2013, which denied her motion to vacate her default in opposing the plaintiff's prior motion for summary judgment on the complaint, and (2), as limited by her brief, from so much of an order of the same court entered February 20, 2014, as granted those branches of the plaintiff's unopposed motion which were for summary judgment on the complaint insofar as asserted against her, and to strike her amended answer to the complaint.

ORDERED that the appeal from the order entered February 20, 2014, is dismissed, without costs or disbursements, as no appeal lies from an order entered upon the default of the appealing party (see CPLR 5511 ); and it is further, ORDERED that the order entered December 6, 2013, is affirmed, without costs or disbursements.

In this mortgage foreclosure action, the defendant Teckla Harding moved to vacate her default in opposing the plaintiff's motion for, among other things, summary judgment on the complaint insofar as asserted against Harding and to strike Harding's amended answer. In submitting her motion to the Supreme Court, Harding failed to attach either the proposed opposition papers or the plaintiff's original motion papers. The Supreme Court denied the motion in an order entered December 6, 2013. Harding appeals.

As the Supreme Court correctly concluded, Harding's papers on her motion to vacate her default were insufficient, as they did not include the plaintiff's original motion papers or Harding's proposed opposition papers (see CPLR 2214[c] ; Plaza Equities, LLC v. Lamberti, 118 A.D.3d 687, 688, 986 N.Y.S.2d 347 ; Biscone v. JetBlue Airways Corp., 103 A.D.3d 158, 179–180, 957 N.Y.S.2d 361 ). In any event, Harding failed to establish a reasonable excuse for her default (see St. Rose v. McMorrow, 43 A.D.3d 1146, 1146, 842 N.Y.S.2d 534 ) and failed to demonstrate that she had a potentially meritorious defense to the foreclosure action (see JP Morgan Mtge. Acquisition Corp. v. Hayles, 113 A.D.3d 821, 822–823, 979 N.Y.S.2d 620 ). Accordingly, the court properly denied Harding's motion to vacate her default in opposing the plaintiff's motion for summary judgment.

Harding's remaining contention is improperly raised for the first time on appeal.