DEUTSCHE BANK NATIONAL TRUST COMPANY, ETC., res, v. EFRAIN GUTIERREZ, ap, ET AL., def
- SUPREME COURT, APPELLATE DIVISION: SECOND JUDICIAL DEPARTMENT
- Jan 25 2013 (Date Decided)
- Balkin, J.P.; Lott, Austin and Sgroi, JJ.
DEUTSCHE BANK NATIONAL TRUST COMPANY, ETC., res, v. EFRAIN GUTIERREZ, ap, ET AL., def — (INDEX NO. 20899/08)Luis Trujillo, East Meadow, N.Y., for appellant.
Rosicki, Rosicki & Associates, P.C., Plainview, N.Y. (Edward Rugino of counsel), for respondent.
In an action to foreclose a mortgage, the defendant Efrain Gutierrez appeals from an order of the Supreme Court, Kings County (Ruchelsman, J.), dated November 2, 2011, which denied his motion to vacate his default in appearing or answering and for leave to interpose an answer.
ORDERED that the order is affirmed, with costs.
A defendant seeking to vacate a default in appearing or answering must provide a reasonable excuse for the default and demonstrate a potentially meritorious defense to the action (see CPLR 5015[a]; Arias v. First Presbyt. Church in Jamaica, 100 AD3d 940; Ramirez v. Islandia Exec. Plaza, LLC, 92 AD3d 747, 748; Cooney v. Cambridge Mgt. & Realty Corp., 35 AD3d 522). The determination of what constitutes a reasonable excuse lies within the sound discretion of the Supreme Court (see Star Indus., Inc. v. Innovative Beverages, Inc., 55 AD3d 903, 904; Antoine v. Bee, 26 AD3d 306, 306).
Here, the appellant failed to demonstrate a reasonable excuse for his default in appearing or answering, or for his lengthy delay in moving to vacate the default (see Garal Wholesalers, Ltd. v. Raven Brands, Inc., 82 AD3d 1041, 1042; Bethune v. Prioleau, 82 AD3d 810, 810-811; Yao Ping Tang v. Grand Estate, LLC, 77 AD3d 822, 823). In particular, the defendant's purported reliance upon alleged loan modification negotiations is unsubstantiated and does not constitute a reasonable excuse (see Jamieson v. Román, 36 AD3d 861, 862; DeRisi v. Santoro, 262 AD2d 270, 271; Flora Co. v. Ingilis, 233 AD2d 418, 419). In view of the absence of a reasonable excuse, it is unnecessary to consider whether the appellant sufficiently demonstrated the existence of a potentially meritorious defense to the action (see Assael v. 15 Broad St., LLC, 71 AD3d 802, 803; Segovia v. Delcon Constr. Corp., 43 AD3d 1143, 1144; Mjahdi v. Maguire, 21 AD3d 1067, 1068). Accordingly, the Supreme Court properly denied the appellant's motion to vacate his default in appearing or answering and for leave to interpose an answer.
BALKIN, J.P., LOTT, AUSTIN and SGROI, JJ., concur.