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Wells Fargo Bank, N.A. v. Russell

Supreme Court, Appellate Division, Second Department, New York.
Dec 12, 2012
101 A.D.3d 860 (N.Y. App. Div. 2012)

Opinion

2012-12-12

WELLS FARGO BANK, N.A., etc., respondent, v. Oswald RUSSELL, appellant, et al., defendants.

Fuster Law, P.C., New York, N.Y. (J.A. Sanchez–Dorta of counsel), for appellant. Rosicki, Rosicki & Associates, P.C., Plainview, N.Y. (Owen M. Robinson of counsel), for respondent.



Fuster Law, P.C., New York, N.Y. (J.A. Sanchez–Dorta of counsel), for appellant. Rosicki, Rosicki & Associates, P.C., Plainview, N.Y. (Owen M. Robinson of counsel), for respondent.
MARK C. DILLON, J.P., RUTH C. BALKIN, JOHN M. LEVENTHAL, and L. PRISCILLA HALL, JJ.

In an action to foreclose a mortgage, the defendant Oswald Russell appeals from an order of the Supreme Court, Queens County (Agate, J.), dated August 25, 2011, which denied his motion for leave to renew his prior motion pursuant to CPLR 5015 to vacate a judgment of foreclosure and sale of the same court entered July 22, 2010, upon his default in appearing or answering the complaint, and to extend his time to appear and answer.

ORDERED that the order is affirmed, with costs.

In this action to foreclose a mortgage, the defendant Oswald Russell defaulted in appearing and answering the complaint. Eventually, the plaintiff moved for a judgment of foreclosure and sale, and the Supreme Court granted the motion, without opposition. Subsequently, Russell moved to vacate his default and extend his time to appear and answer. The Supreme Court held that Russell had failed to establish a reasonable excuse for his default, and it denied his motion without considering whether he had demonstrated the existence of a potentially meritorious defense to the action. Russell did not take an appeal from the order denying his motion, but instead moved for leave to renew his motion. In support of his motion for leave to renew, Russell alleged, among other possible defenses, that the plaintiff lacked standing to commence the action and that it had obtained the judgment by fraud. The Supreme Court denied Russell's motion for leave to renew, and Russell appeals.

“A motion for leave to renew must (1) be based upon new facts not offered on a prior motion that would change the prior determination, and (2) set forth a reasonable justification for the failure to present such facts on the prior motion” ( Swedish v. Beizer, 51 A.D.3d 1008, 1010, 859 N.Y.S.2d 668, quoting Ellner v. Schwed, 48 A.D.3d 739, 740, 851 N.Y.S.2d 373;seeCPLR 2221 [e]; Yerushalmi v. Yerushalmi, 82 A.D.3d 1217, 1217, 919 N.Y.S.2d 374).

A defendant who seeks to vacate a default in appearing or answering must provide a reasonable excuse for the default and show a potentially meritorious defense ( see U.S. Bank N.A. v. Stewart, 97 A.D.3d 740, 740, 948 N.Y.S.2d 411; Deutsche Bank Natl. Trust Co. v. Rudman, 80 A.D.3d 651, 652, 914 N.Y.S.2d 672;Maspeth Fed. Sav. & Loan Assn. v. McGown, 77 A.D.3d 889, 890, 909 N.Y.S.2d 403). The Supreme Court denied Russell's motion to vacate his default on the ground that he had failed to provide a reasonable excuse for his default. Upon moving for leave to renew, Russell did not submit new facts that would cure that deficiency. Consequently, whatever the possible merit of the potentially meritorious defenses he offered in support of his motion for leave to renew ( see Bank of N.Y. v. Silverberg, 86 A.D.3d 274, 279, 926 N.Y.S.2d 532;but cf. HSBC Bank, USA v. Dammond, 59 A.D.3d 679, 875 N.Y.S.2d 490), those contentions would not have changed the original determination. Accordingly, the Supreme Court properly denied Russell's motion for leave to renew ( see Reich v. Redley, 96 A.D.3d 1038, 1039, 947 N.Y.S.2d 564).

Russell's remaining contentions are without merit or need not be addressed in light of our determination.


Summaries of

Wells Fargo Bank, N.A. v. Russell

Supreme Court, Appellate Division, Second Department, New York.
Dec 12, 2012
101 A.D.3d 860 (N.Y. App. Div. 2012)
Case details for

Wells Fargo Bank, N.A. v. Russell

Case Details

Full title:WELLS FARGO BANK, N.A., etc., respondent, v. Oswald RUSSELL, appellant, et…

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

Date published: Dec 12, 2012

Citations

101 A.D.3d 860 (N.Y. App. Div. 2012)
955 N.Y.S.2d 654
2012 N.Y. Slip Op. 8514

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