Onewest Bank FSB v Perez

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Onewest Bank FSB v Perez 2012 NY Slip Op 31269(U) May 4, 2012 Sup Ct, Suffolk County Docket Number: 13463-10 Judge: Daniel Martin Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK I.A.S PART 9 SUFFOLK COUNTY INDEX IW).: 13463-10 PRESENT: HON. DANIEL MARTIN MOTION DAn:: _____ . ._~ ~~~_x ONEWEST BANK ESB Plaintiff, 10-26-11 ADJ. DATE: 11-23-1 I MOT. SEQ. #: 002~IVIG 003-XMD PLAINTIFF'S -aoaillstb NESTOR PEREZ; ROSA C' GOMEZ, AlKJA ROS.~ C. PEREZ; BERKOSKI ENTERPRISES INC'; CASTLE AUTO PARTS, LLC; DAIMLER CHRYSLER FINANCIAL SERVICES AMERICAS, LI.C SUCCESSOR BY MERGER TO DAIMLER CHRYSLER SERVICES NORTH AMERICA, LLC; CLERK OF TH E SUFFOLK COUNTY DISTRICT COURT: "JOHN DOE #1-5" AND "JANE DOE #1-5" saId names being lictltiollS, It bClng the ll1tention oCPlaintiffto designate any and all occupants, tenants, persons or coq)OratloIlS, IL.I1l)', having or claJming an mtcrcst in or lien upon the premises being foreclosed herein; 10-25-11 ATTY: FEIN, SUCH & ClUNE, U.I' 747 CHESTNUT IUDGE RD. STE. !OO CHESTNUT IHDCr:, NY IOl)77-(,ll() DEFENDANT'S ATTY: KENNETII S. PELSli\'GER. Pc. 3601 HEMI'STE!\DTl'KE,STE305 LEVITTO\VN, NY 1175(1 DEFENDANTS: NESTOR PEREZ 1004 EVERGREE/\' BRONX. N.V '\ VE. BSMT. 10472 ROSA C. GOI"[[/. A/KIA ROSA C. I'~:REZ 6 I',.'IVRTLE AVENUE BIU:NTWOOD,~LV.11717 Defendants _~~~~~~ ~_~_x BER.I\.OSKI ENTERPR[SES, 1 MAR[NER DRIV[~ SOUTIIAMPTOj\" j\'.'{ [j\'('. 19M; CASTLE ,\lITO PARTS, U.( 2061 JERIUIO TUIlJ"l'lhE COI\II"L\("K, N. Y. 1172:' DAIMLER CIIIHS! ER FINANCIAL SERVICES AMERICAS, LLC SUCCESSOR BY MFRC;[·:R TO DA['\'ILER CI-mYSl ER SERV[Cl·:::; NORTH AMER[CA. j LC [l[ LlCHTAVENUr: NEW YORk, N. Y. 10011 [* 2] ()11L'Wl.'SI Ibllk l:SB v Perez ITld\.'~:N(1.· ! J-J.(}:1-11) p" , ",. - {·l.FH l"': i iF TJi E Sl IFF<)J.I"': ( '( H :j\TY -{Oil('.-\I{l,ETOf\ .\\'E;'\'tiE T.'\Tk·\L DISTRICT ('C HiH,T 1.'-11.11',~. . 11762 V ("1..\"1>101'01.0 () !\IYRTI.E ,\ \·I<:.\'lil-: HRI·:xrWOOf), :~.,'.11717 (·liJ{j~Tf.\S (;O!\n:z i, .\1\ lfl'l.E .\ \" 1-:1\'" E B!·U:~T\\·O()J). N. Y. 11717 .J!'1.I0 PO!.O u .'\1\"RTI.E.-\ VEt\'llE BRENTWOOD, S.Y. 11717 rILl' fullil~'ll;: i 1!;IlHCd P~J1l:rSban' hnll rcad 011 this mOlion: ~. . .-0_ prill"!".!" ~h"" {'all'l'Ii\'n(in' "I"MOliOIl (l:!)-,,~-i~.l.!.!!i!,ll .\_ ,l!!.~'~rin;: .\rt1II;I\'il,L .__ ~_---.l ~ l{"Ilh'in~ ,\ffid:l\'il.\ O/?J)/:'Rh"J) ~llld I'm(l',:dill~~ lll~lt thiS 1110tl,1I1 ((j02) by the pb1l1tiJf * 1.~lW ui' rcll'l"cIH::c :q)I)l\ill\ill~~ r..:~IPII(lI\()I'tlle 1.'\21 fix leave 10 enter" "l rclcl'ce to cOlnpuk, SIII11111,)11S COlllpl(lllll' 'llld 01tf)h'RJ:'/) .lIlt! IS deillcd; IllOr!g:I:,',,: dnc1I1l1L'l1ls which \\ ithin ()!{ f) L (hi ;!II,I ~111 ,llt!cr It"I' 1l'~I''-CILl ,I,lil'IHI lile Ncslm Iln'.'i' I'ui' ,Iii (lniL']" Pllr'SlI~illl 1,', IllS p n jpL \SL'd :md It is furth,']" antc..: with Ihis 'll.::tioll was hrought ~Il __ i1.!lJ2ltLJ...Ql!J.lu:~ ....I<.(\ill1_Sk ,lliS ;111 to ascertain ,\l1d COlll))UI(, til~' dl1l0lll11 due 1111(111111,' !lull' 10 li)]"ecillsc. ;llltlll1 l'\,lll1ill~' ~ll1d I\:port ;lild whcthL.'J' lil ¢... and it is furlhL'r lhat lhe Rdt:n.::c hc paid 111(: sum ofS25().I)(J ]I.l!' tllC COlll!llll<l1 illil or Ill'..: :!ll]t":I:ll[ due lil!.: 30 days 1lt.:l"ClJf. N EO th:lt \\ l:h P;lrl .'(1 pf"lhe Rllks hy al'CL'pLlIlg tillS ~lppollltlllcnt orthc ('lllL'fJudgc (L'I t "I )lsq 1I:tIi lien i nlls ["rom appollltlllcllt") L'lHll!)L'11S~l!iOll"): .)1)1) i 11::; his t 1mL:to <\ppcar cilld ~lIJS\VCi' ami e,llil pc 11111ll1L'pi dl ilt i Inti: Il'n'pl !,~ l1lorl~<IgL'd prop ¢... C~1l1 solJ in parcels; rly he plailltill ;,IS~lg,lil1st \11\.' kl\:lltl~iill:-; ( ,\Cil\lilS IS gr~\l1tcd: ,li1d 11is l'lIrll1er O/?J)/:'R/:"J> II1~\1 D'lvidl. Reillv !I.JiD.~0.b,.t:·:!.j.... IJ...:..~u.. IS :\pPo1l11ed Relt:rcc OR f)1:'J( I:'J) dcl~ILllt.llId::;tilClll ,\l1d IH\rSLI~\l1tto CIlI.R lll~l\ thiS cross i110l1011 (OUJ) by the dcl\:lldillli ( .P 1.1<' .;! J I ~ (d) ex 1end :II1S\VL'I"S l'(lilsiti,:n.:d I 101'~11l ur~kr PllI"SLI~llll lu R",d i'rullcny and iL is rurlhci' (22 )\i'rTRR thc Rekr ¢ ¢e ~'l'l"li Ii L'S(1;;: h~',:-!,'.: IS ! 11C,;i lip Ii:\; Il' ~ : Pan 3(1). iIlL'llldill:~ and SL'ClI011 3h.2 (d) (" [.imllal hlllllllllilllill"d 1o. S,.:C!lIl1l3(1.~ inns III 1:IPPUInlll leiltS h;!SL'd lIpn,l [* 3] One West Bank FSB v Perez Index No.: 1~463-1 () Pg. 3 OR[)ERED that the caption of this action hercmafter appear as follows' SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK ONEWEST BANK FSB, Plaintiff, -agmnst- NESTOR PEREZ; ROSA C. GOMEZ. a/ka ROSA C. PEREZ; BERKOWSKI ENTERPRISES, INC.; CASTLE AUTO PARTS, LLC; DAIMLER CHRYSLER FINANCIAL SERVICES AMERICAS, LLC SUCCESSOR BY MERGER TO DAIMLER CHRYSLER SER VICES NORTH AMERICA, LLC; CLERK OFTHE SUFFOLK COUNTY DISTRICT COURT; CLAUDIO POLO; CHRISTIAN GOMEZ; .IULlO POLO; Defendants. This is an actlOll to loreclose a mortgage on residential real property known 3S 6 Mrytle Avenue, 8renlwood, New York (the subject property). The defendant Nestor Perez (the defendant mortgagor) allegedly executed an interest only fixed rate promIssory note dated January 22, 2008 in favor of JndyMac Bank, F.S.B. (lhe lender) agreeing to pay the principal sum of$403, 142 at the rate of 6.625% begmning on March 1,2008 through to l'vlarch 1,2018, the due date. The note also provides thaI all amounts owed, ifany, shall be paid on February 1,2038. the maturity date. To secure said note, the defendant mortgagor and the defendant Rosa C. Gomez also known as Rosa C. Perez (Rosa Gomez) executed a mortgage ofthc same date on the subject property. The note bears an undated endorsement by thc lender in blank and without recourse. The mortgage 1J1cheates that Mortgage Electronic RegIstration Systems, Inc. (MERS) was acting solely as a nOn11J1cefor the lender and its successors and assIgns and that for the purposes of recording the mortgage MERS was the mOligagee ofreeord. By assignment dated Mareh 31,2010, MERS as 110111111ee the lender allegedly transfenwl the mortgage and "all rights accrued under said [m ]ol1gage for and all indebtedness secured thereby" to OneWest Bank FSB (the plaintiff). The defendant mortgagor allegedly defaulted 011 his monthly payment of interest on July], 2009 and each month thereafter. The plainti fr allegedly sent the defendant mortgagor a notice of default dated August 15, 200e) as well as a 90-day notice dated November 2, 2009 pursuant to RPAPL ~ 1304. The plalllti/T also allegedly sent Rosa Gomez a notice of default dated February 17.2010. The defendant Illorlgagor and Rosa GOllle/, allegedly failed to cure their default. The plainti ITeOIlllllenced the instant action by the nling of a summons and complaint on April 8, 2010. None ortlle defendants have filed an ans\ver. According to the records llla1l1tained by the Court's computerized database, a pre-screening settlement conference was held in the Specialized Mortgage Foreclosure (\mJCrellce ParI all .July 23,2010. The C0U11's records also ref-leet that notice of the conference was sent to tile defendant mortgagor al his residence, 104 Evergreen A venue, Bronx, New York (the Bronx n:,sHknce), and Rosa Gomcz at the subject property, On that date, this case \vas marked 10 Imllcate that there was no appcarance or participation fi'om the defendant Illortgagorol- Rosa GameL As a result, this case was referred to IAS Part 9. Accordingly, there has been compliance with CPLR J40S and no further settlcment conference is required. Thereafter, the pla1I1tiffmoved for, Illter alia, an order appomting ,1 referee 10 compute and an amendment orthe caption. On or about November 8, 2010, the plillIltirrs applicatIon for an order ofrefercncc was marked "not-signed - withdrawn" \\lI11CI1 effected a dispositIon oClhe motion wIthout judicIal input. [* 4] Onc\Nest Bank FSB v Perez Indcx No. I 34CJ3-10 Pg. 4 The plalntlfCnow moves by notice of motion for, Inter alia, an order appointing a referee to compute and an amendment a f the caption. In support 0 f the motion, the plainti Ffsubm its, among other th Ings, the sUlllmons and complaint, affidavits of service, the note and mortgage, the assignment, and an affidavit of merit. In one affidavit of service, the pl3inti Ws process server alleges, among other things, that a copy or the summons and verified complaint wIth notice of pendency in compliance with RPAPL ~§1302 and 1320 was delivered to Clare Maza, a co-resident at the defendant mortgagor's dwelling/the Bronx residence, Oil April 14,2010, and another copy was mailed to the defendant mortgagor on ApnI 15,2010, The pro rrered a iliclav it of servIce upon thc dcrendant 1ll0l1gagor is stamped fi led 011Apt"!1 15, 20 10 by the SufTolk County Clerk's Office. In another afJidavit of service pursuant to CPLR 3215 (g)(3), additional 110tlcewas allegedly sent to the defendant mortgagor at the Bronx residence by ordinary mail on Apnl 15, 20 I O. Accompanying thaI affidaVIt is a copy of a certificate of m,lJ ling by the U.S Postal Service of mailing upon the deICndant mortgagor at thc Bronx residence on Apri115, 2010. The defendant mortgagor now cross moves for an order pursuant to CPLR 30] 2 (d) extending his time to appear and answer and compelling the plaintiff to accept his proposed answer. The submissions in support of the cross motion include an affidavit from the defendant mortgagor and a proposed verified ,ll1s\ver and counterclaim. In his affidavit, the defendant mortgagor alleges that he was never served with the summons and complaint and that he did not receive a copy by mall. He also alleges that never recerved the Court's notice ofthc foreclosure settlement conference. The defendant mortgagor further alleges that "as soon as [hellearned of the within foreclosure action" he retained an attorney to draft the proposed answer. As to the ments of his application, the defendant mortgagor claims that the p laintiffdoes not have standlllg on lhe grounds thClt the assignment of the note and mortgage was defectivc. In the proposed ,lllswer, the defcndant mortgagor 811cges, among other things, lack ofpersonaljurisdletion and a lack of standing, In oppositlon to the cross-motion, the plaintiff contends that the defendant mOl1gagor has neither a reasonable excuse fl.)]' his default in answering nor a valid defense to this foreclosure action rendering the submission of an answer meal1lllgless. The plamti IT also contends that since tbe defendant mortgagor's answering limc expired on t\1ay 25,2010, an order compelling acceptance oran answer at this time would be highly prejudiCial to it. The plaintiff adds that the defendant does not dellY knowing Clare Maza, but only clalllls that he dId not receive the summons and complalllt. A pl,lIntifflll a mortgage forcclosure action establishes a prima facie case, as a matter of law, by submission 0 f the mortgage, the mortgage note, bond or obhgation, and evidence of dcf~lUlt (see, Valley Nat'! Balik I' Deutsche, 88 AD3tl691, 930 NYS2d 477 [2d Dept 20l1J, Wells Fargo Bank I' Karla, 71 AD3d 1006,896 NYS2d ()81 [2d Oept201 0); Washington Mut. Bank FA l'O'Connor, 63 AD3d 832, 880 NYS2d 6% [2ei Dept 2009l). The burden then shifts to the defendant to demonstrate "the existence of a triahle Issue of fact as to a bona fide defense to the 3etion, such as waiver, estoppel, bad f~lith" fraud, or oppressl ve or unconscionable conduct on the part of the pla11ltifT' (Capst(Jlte Bus. Credit, LLe v lmperhl Fami(v Realty, LLC, 70 AD3d 882, 883, 895 NYS2d 199 [2e1Oept201 OJ). fn the instant case, the plall1tiff' produced the executed note and mortgage, evidence of nonpayment, and the notice oCdcrault. The plalllli iT also submit ted, Inter :l1ia, an affidaVIt ii-om an 0 ffieer a I'the plaintIff whereby Its is alleged that the plainti fr IS stili the holder of the note and mortgage, as well the assignment which predates the commencement of this action (see, US. fJank, /V.A. "Coll)'lJIore, 68 AD3d 752, 890 NYS2d 578 [2d Dcpt 2009.1). As the [* 5] OneWcst Bank FSB v Perez Index Nt).' I:i461-] () Pg . .5 plillilti rr demonstrated Its entitlement to judgment as a matter of law, the burden of proof shifted to the defendant mortgagor (see, HSBC Bank USA v il1errill, 37 AD3d 899, 830 NYS2d 598 [3d Dept 2007J), Accordingly, it was incumbent upon the defendant mortgagor to produce evidentiary proof in admissible 1(,))"Ill Cflcicntto demonstrate the eXIstence ora tnable issue of fact as to a bona fide defense to the action su (sec, Argel1t Mtge. Co., LLC)' Memesal1a, 79 AD3d 1079,1.)15 NYS2d 591 [2d Dept 2010]; Aames Fuudillg CO'1J.v Houston, 44 AD3d 692, 843 NYS2d 660 [2d Dept 2007J). Turning to the issues raised by the cross motion, it is well settled that a "defendant who secks to successfully oppose a Illotion for leave to enter a default judgment based on the failure to 1Jmcly serve all answer and seeks leave to extend the time to appear or to compel acceptance of an untimely answer must proVide a reasonable excuse for the default and for the delay and show a potentially mcritonous defense" (Deutsche Balik Nat'!. Trust Co. v RlldmaJl, 80 AD3d 651, 652 [2d Dcpt 20] 1]; see also, May v Hartsdale Md/wr Owuers Corp., 73 AD3d 713 [2d Dcpt 201 OJ; Sbarra v Sieverlliclr, 2011 NY Slip Op 32064U rSup Ct, Suffolk County, July 13,201], Cohalan, J.D. The detenllination of what constitutes a reasonable excuse lies withm the sound discretion of the Supreme Court (see, Maspeth Federal Sav. & Loan AsslI. v Smith, 84 AD3d 746 [2d Dept 201OJ; Star Illdus. Inc. v Inllovlltil'e Bevet'llges, IIlC., 55 AD3d 903 [2d Dept 2008]). Vague, nonspecific and uncolToborated factual assertions, upon whIch a clalll, of a reasonable excusc for a dehwlt are predicated, are gcnerally insufficient to satisfy the reasonable excusc requIrements (see, Wells Fargo Bank v Lillzenberg, 50 AD3d 674 [2d Dept 200S]; Canty v Gregory, 37 AD3d 508 [2d Dept 2007J). CPLR 308 (2), rntcr alla, authorizes service by delivery ofthe summons within the State to a person ofsllltablc age and discretIon at the defendant's dwelhng place, and mailing the summons to the defend3nt's last Known residence. "The plaintiff bears the ultimate burden of proving by a preponderance of the evidence that Jurisdiction over the defcndant \vas obtained by proper service of process" (Bankers Trust Co. ofCal. I' Tsoukas, 303 AD2d 343, 343, 756 NYS2d 92 [2d Dept 2003J; see, Wem I' D'Alesslllldro, 219 AD2d 646, 647, 631 NYS2d 425 [2d Dept 1995]). An affidavit of service by the plaintiffs process server which specifics 1he papers served, the person \\lho was served, and the date, time, address and sets f0l1h r~lCtssho\vl1114 that service was m3de by an authorized person, and III an authorized manner, constitutes prima j~lcieevidence of proper service (Mll/donado v COUllt)'of Suffolk, 229 AD2d 376, 644 NYS2d 572 [2d Dcpt 19%]). A sworn denial of service by the defendant \vill rebut the presumptIon or proper service only where it refutes factual allegations in the process server's affidavit or presents <l question of fact rather than baldly denying receipt of process (Silvermafl v Deutsche, 283 .!\D2d 478, 724 N'{S2d (}47[2e1Dcpt 2001]; European Am. Bauk I' Abramo/I; 201 AD2e! 611 ,60S NYS2d 233 [2d Dept 1994]). Bare cOl1clusoryand ullsubstantiated denials of receipt oCprocess are thus lllSU fficlCnt to rebut the pre.o;lImptionof proper service created by the aft-idavit orthe plaIntiiTs process server and 10 require a lr,lvcrsc hcarl1lg (see, Irwin Mtge. Corp. I' Devis, 72 AD3d 743, 898 NYS2d 854 [2d Ocpt 2010]; Bel/clidal /{omcmvlIer Servo Corp. v Girault, ()O A03d 984, 875 NYS2cl 815 [2e1Ocpt 2009]). By Its submISSions, the plamtl ff established, prima facie, that the defendant was properly served pursuant to CPLR 30S (2) (see, i14attet olGoldberger I' Galls/mrg, 85 AD3d 014, 92() NYS2d 11() [2e1 Dcpt 201 1]; Noherts l' Allka, 45 AD3d 752, 846 NYS2d 280 [2e1Ocpt 2007]). The arfidavits submitted by the plaintilT show that the defendant mortgagor wns properly served pursuant to CPLR 30S (2). The plwntilTlws also demonstrated [l1at the affidavit of service upon the defendant lllo11gagor by substitute [* 6] OlleWest Bank FSB v Perez Index No· IJ463-10 ['g. () service was timely filed with the Suffolk County Clerk's Office. Under the circumstances presented here, the dcfcndanlmortgagor's papers arc rnsufficient to rebut the process server's affidavit of service of the sUlllmons and compJal11tpursuant to CPLR 308 (2) (see, Beneficial Homeowner Servo Corp. v Girllllit, 60 AD3d 984, supra: Hamlet ofOlde Oyster Bay Homeowners' Assoc. Ellner, 57 .AD3d 732, 869 NYS2d 591 [2d Dept 2008]). The bald, conclusory, and unsubstantiated dellial of service set fC!lihIn the defendant mortgagor's supporting affidavit failed to rebut the presumption of service that arose from the affidavit 01' the plaintdrs process server. In his affidavit, the defendant mortgagor, has not clalillcd that the Bronx reSidence was no! hiS dwelling at the tunc of service, nor has he dCl1Icdthat he even knows his co-resident Clarc Ma7,a. Moreover, the defendant mortgagor failed to submit any affidavit by Clare Ma7,a dcnying rccelpt of the SUllllllons and complaint (see, Roberts v Auka, 4S AD3d 752, sllpra; (1, f'-'ostel'v Jonlall, 2(J9AD2d 152,703 NYS2d 23 I Dept 2000]). The defendant mortgagor's denial of servIce is conclusory lllsofar as it docs not refute the contents of the process server's affidavit, nor does it raIse a question of fact as to whether service \-vas properly effectuated. All that IS offered is a denial of service (see, Tik1'ltll Elltel]Jrises, LLC v .!Veumau, 80 AD3d 748, 915 NYS2d 508 [2d Oept 2011]; (I, u.s. Bank, Nat'l ASSII. l' Aria.~',85 AD3d 10)4,927 NYS2d 362 [2e1Dept 2011 J). Accordingly, the defendant mortgagor's churn that this Coul1 lacks personal jurisdictIOn over Imll due to improper service of process must fail. Accordlllgly, no hearing is required. r S[ The defcndant mortgagor has failed to demonstrate a reasonable excuse Jar his lengthy default other than 1Il1prOpCr ervice whieh has been foulld unmentorious (see, Deutsche Bank Nat'l Trust Co. I' s Rudman, 80 ADJd ()51, 914 NYS2d 672 [2d Dept 20 I I]; The Bank of New York v Bestbllysigital, Inc., 2010 NY Mise LEXIS 2360, 2010 NY SIJp Op 31418U [Sup Ct, Nassau County, June 2, 2010, Palmeri, .I ]; LOllg Is. Minimally bll'osiJ'e Surgery, P.c. v Lester, 12 Misc3d 1183A, 824 NYS2d 763 [App TelTll, )_<1 Dcpt, July 13, 2006, Phelan, .J .J). Evcn I fthe branch of the defendant 1l10ligagor's cross motion whIch seeks, 111 ffect, to vacate his default were to be treated as olle made pursuant to CPLR 317 (see, Eugene e DiLorenzo, Illc. vA. C. Dutton Lbr. Co., 67 NY2d 138,501 NYS2d 8 [1986]), the defendant mortgagor failed to demonstrate that he dId not ITCCIVCotice of the summons and complaint IIItime to defend the n action (see, C & If Import & E.\]Jort I' MNA Global, Inc., 79 AD3d 784, 912 NYS2d 428 [2d Dept 201 OJ). The plallltifl"s evidence that a eopy of the summons and complaint was malled to the dcltndant mortgagor's correct reSidence address created a presumption of proper mailing and {)I'receipt (set', Engel I' Lichterman, CJ2 NY2d 943, 479 NYS2d 188 [1984 J; Calvary Portfolio Servs., LLC I' Reismall, 55 ADJd 524,865 NYS2d 28() [2d Dept 2008]). H is denial of receipt, without more, does not rebut the presumption of proper mail1l1g(see, Calvmy Portfolio SerlO.'>., LLC v Reisman, 55 AD3d 524, supra). Additionally, while the defendant mortgagor proffers that he retallled an atto111eyto draft the proposed answer after he learned of this action. he has not set forth any specific allegations as to how or whcn he first became aware o I'thIs !ltig,ltion (see, $'iIvernum " Deutsche, 283 AD2d 478, sllpra; see a/so, Balik of NY I'Jayw,'1val, 33 Misc3d 1214A, 2(}11 NY Misc. LEXIS 4998 [Sup Ct, Suffolk County, Oct. 17,2011, Whelan, .I.]; Green Point Sm'. Balik I' Clark, 25J AD2d 514, 676 NYS2c1 874 [2e1Dept 1998]). In light of the defcndanl mortgagor's 17-month delay in moving for the rclicfherein, his conclusory, vague allegations in this regard ~lreSimply incredible as :1 J1l,lttcr01'law. Since the dcfcnd,lllt mortgagor fiulcd to proffer a rcasomlhlc excuse for his f~lIlureto timely answer the complaint pursuant to CPLR 3012 (d), it IS unnecessary to consider whether he demonstrated the C.\lSlCllCe r a potentially meritorious defense (see, Deutsche Balik lVat'l Trust CO. I' Rudman, 80 ADJd o [* 7] OneWest Bank FSB v Perez Index No.: J3463-10 Pg. 7 651, supra; HSBC Bank USA, N.A. "Roldau, 80 AD3d 566, 914 NYS2d 647 [2d Dept 2011J). In any event, the defendantlllol1gagor failed to demonstrate that any of the defenses raised in his proposed answer arc potcnlwl1y meritorious (see, LCI'Y I' Prime Easf 15''', LLC, 89 AD3d 1066,933 NYS2d 587 [2d Dept 2fJ 111; Valley Naf '/ Balik v Deufsche, 88 AD3d 691, supra; Deufsche Bank Naf'l Trust Co. v Pietrllllico . . 3 Misc3d 528, 928 NYS2d 818 [Sup Ct, Suffolk County, July 27.2011], Whelan, ./.]; J() CmltlOr Lalle 1 I' C. Conllor LllIle Assoc., LLC, 2011 NY Slip OJ) 31439U [Sup Ct. Suffolk County, May 10, 2011. Martin, J.]). Baseu upon the foregoing, the motion for leave to enter a default judgment against all the uefcndants, nOlle of which has <lnswered, and for an order of reference is granted (see, RPAPL § J321 ; HSBC Bank USA, N.A. v Roldau, 80 AD3d 566, supra). The cross motion by the defendant mortgagor for an order extending his time to appear and answer and compelling thc plaintiff to accept his answer is denied (see, hi.). The branch oftllc instant motion wherein the plaintiff secks an order substituting Claudio Polo in pl,lCC for John Doc #- 1, Christian Gomcz for John Doe #- 2, and Julio Polo for John Doe 1+ 3, and amending the caption by cxcismg the fictitious named defendants, ./ohn Doc tf- 4 through ./ohn Doe # 5 and Jane Doc 1+ I through .lane Doc fi 5, is granted pursuant to CPLR 1024. By Its submIssions, the plaintifrcstablishcd the basis for Ihis relicf (see, Neighborhood Hom;. Sel'vs. N. Y. Cif)', lltc. v Meltzer, 67 AD3d 872. 889 NYS2d 627 [2d Dept 2009]). All future proceedings shall be caplioncd as indIcated <lbovc. Accordingly, the motion is granted and the cross motion is denied. The proposed order appointing a referee to compute, as modified by the Court, has been si!:,7J1cdimultaneously herewith. s cJo/~ Dated ~ Riverhead. NY // / /' ;'.. ..l/·' -' - ,r-;-', ..... 1'"'_ /1 HON, DANIEL MARTI!'il, AJ's,C \ __ FINAL DISPOSITION x NON-FINAL DISPOSITION

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