GMAC Mtge. Corp. v Druchinina

GMAC Mtge. Corp. v Druchinina 2009 NY Slip Op 09187 [68 AD3d 816] December 8, 2009 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 10, 2010

GMAC Mortgage Corporation, Respondent,
v
Tatiana Druchinina, Respondent, et al., Defendants, and Anthony Samuels et al., Appellants.

—[*1] Viscardi, Basner & Bigelow, P.C., Jamaica, N.Y. (Craig K. Tyson of counsel), for appellants.

Steven J. Baum, P.C., Buffalo, N.Y. (Charles D.J. Case of counsel), for plaintiff-respondent.

In an action to foreclose a mortgage, the defendants Anthony Samuels and Brenda Samuels appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Weiss, J.), entered July 21, 2008, as granted the plaintiff's motion to vacate a prior order of the same court dated November 1, 2007, inter alia, granting that branch of their motion which was to dismiss the complaint insofar as asserted against them, upon the plaintiff's default in opposing the motion, and, upon vacatur, denied that branch of their motion.

Ordered that the order entered July 21, 2008 is affirmed insofar as appealed from, with costs.

The Supreme Court providently exercised its discretion in vacating the prior order dated November 1, 2007, inter alia, granting that branch of the motion of the defendants Anthony Samuels and Branda Samuels which was to dismiss the complaint insofar as asserted against them upon the plaintiff's default in opposing the motion, since the plaintiff demonstrated a reasonable excuse for its default (see Montefiore Med. Ctr. v Hartford Acc. & Indem. Co., 37 AD3d 673, 673-674 [2007]; cf. Lemberger v Congregation Yetev Lev D'Satmar, Inc., 33 AD3d 671 [2006]; Bank of N.Y. v Lagakos, 27 AD3d 678, 679 [2006]), and had a meritorious claim (see Washington Mut. Bank, F.A. v O'Connor, 63 AD3d 832, 833 [2009]; Cash v Titan Fin. Servs., Inc., 58 AD3d 785, 788 [2009]; Daniel Perla Assoc., LP v 101 Kent Assoc., Inc., 40 AD3d 677, 678 [2007]).

The appellants' remaining contentions are without merit. Rivera, J.P., Florio, Miller and Hall, JJ., concur.