Deutsche Bank Natl. Trust Co. v Thompson

Deutsche Bank Natl. Trust Co. v Thompson 2017 NY Slip Op 04405 Decided on June 6, 2017 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 6, 2017
Renwick, J.P., Richter, Feinman, Gische, Kahn, JJ.
4185 380995/07

[*1]Deutsche Bank National Trust Company, as Trustee for Long Beach Mortgage Loan Trust 2006-4, Plaintiff-Appellant,

v

Frances Thompson, Defendant-Respondent, New York City Transit Adjudication Bureau, et al., Defendants.

Fein, Such, & Crane, LLP, Westbury (Michael S. Hanusek of counsel), for appellant.

Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered on or about December 9, 2015, which denied plaintiff Deutsche Bank National Trust Company, as Trustee for Long Beach Mortgage Loan Trust 2006-4's (Deutsche Bank) motion to vacate its default and restore the action to the calendar, unanimously affirmed, without costs.

The motion court determined that the discrepancy between the physical description of the person personally served, according to the affidavit of service, and that of defendant warranted a traverse hearing (see Matter of St. Christopher-Ottilie (169 AD2d 690, 691 [1st Dept 1991]). After several adjournments, Deutsche Bank failed to appear at the final scheduled hearing.

Even if Deutsche Bank has provided a reasonable excuse for default based on law office failure (see Dokmecian v ABN AMRO N. Am. , 304 AD2d 445, 445 [1st Dept 2003]), the motion to restore was properly denied. Deutsche Bank provided no proof on the motion that it could have prevailed at the traverse hearing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 6, 2017

CLERK