HSBC Bank USA v Wider

HSBC Bank USA v Wider 2012 NY Slip Op 08286 Decided on December 5, 2012 Appellate Division, Second 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 December 5, 2012
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
MARK C. DILLON, J.P.
THOMAS A. DICKERSON
LEONARD B. AUSTIN
ROBERT J. MILLER, JJ.
2011-05819
(Index No. 5019/08)

[*1]HSBC Bank USA, National Association, etc., respondent,

v

Aaron Wider, appellant, et al., defendants.




Jeffrey L. Solomon, PLLC, Woodbury, N.Y., for appellant.
Kozeny, McCubbin & Katz, LLP, Melville, N.Y. (Lauren
Currie and Douglas S. Thaler of
counsel), for respondent.


DECISION & ORDER

In an action to foreclose a mortgage, the defendant Aaron Wider appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Adams, J.), entered April 12, 2011, as denied his motion, in effect, to vacate so much of a prior order of the same court (Mahon, J.), dated September 9, 2008, as granted that branch of the plaintiff's unopposed motion which was for summary judgment dismissing his answer.

ORDERED that the order entered April 12, 2011, is affirmed insofar as appealed from, with costs.

The plaintiff (hereinafter the bank) commenced this action against, among others, the appellant (hereinafter the homeowner) to foreclose a mortgage. The bank moved, inter alia, for summary judgment dismissing the answer. The homeowner failed to oppose the motion, and the Supreme Court granted that branch of the bank's motion upon the homeowner's default.

More than two years later, the homeowner moved, in effect, to vacate so much of the order dated September 9, 2008, as granted that branch of the bank's motion which was for summary judgment dismissing his answer. In the order appealed from, the Supreme Court denied the homeowner's motion.

To vacate his default in opposing that branch of the bank's motion which was for summary judgment, the homeowner was required to demonstrate a reasonable excuse for failing to oppose the motion and a potentially meritorious opposition to that branch of the bank's motion which was for summary judgment (see Strunk v Revenge Cab Corp., 98 AD3d 1029, 1030; Tsikotis v Pioneer Bldg. Corp., 96 AD3d 936, 936). Since the homeowner failed to demonstrate a potentially meritorious opposition to that branch of the bank's motion which was for summary judgment (see e.g. Capital One, N.A. v Knollwood Props. II, LLC, 98 AD3d 707, 707-708; U.S. Bank, N.A. v Sharif, 89 AD3d 723, 724), the Supreme Court properly denied the homeowner's motion, in effect, [*2]to vacate his default, regardless of the homeowner's reasons for failing to oppose the bank's motion (see Pape v Daino, 60 AD3d 654, 654; Oyebola v Makuch, 10 AD3d 600, 601).

The homeowner's remaining contention is not properly before this Court.
DILLON, J.P., DICKERSON, AUSTIN and MILLER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court