Wells Fargo Bank v Malave

Wells Fargo Bank v Malave 2013 NY Slip Op 04595 Decided on June 19, 2013 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 June 19, 2013
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
PETER B. SKELOS, J.P.
JOHN M. LEVENTHAL
CHERYL E. CHAMBERS
PLUMMER E. LOTT, JJ.
2011-03500
(Index No. 6567/06)

[*1]Wells Fargo Bank, etc., respondent,

v

Josue Malave, et al., defendants, Janet Morales, et al., appellants.




Bruce Richardson, New York, N.Y. (Bruce Richardson of counsel),
for appellants.
Reed Smith, New York, N.Y. (Andrew B. Messite and Joseph
B. Teig of counsel), for respondent.


DECISION & ORDER

In an action to foreclose a mortgage, the defendants Janet Morales and Luis Morales appeal from an order of the Supreme Court, Kings County (Bayne, J.), dated April 8, 2011, which denied their motion to vacate a judgment of foreclosure and sale of the same court dated January 30, 2007, entered upon their default in appearing or answering the complaint, to set aside the foreclosure sale of the subject property, and to dismiss the complaint for lack of standing.

ORDERED that the order is affirmed, with costs.

The Supreme Court properly denied that branch of the appellants' motion which was to vacate the judgment of foreclosure and sale dated January 30, 2007, which was entered upon their default in appearing or answering the complaint. A defendant seeking to vacate a default in appearing or answering must demonstrate a reasonable excuse for the default and a potentially meritorious defense to the action (see CPLR 5015[a][1]; U.S. Bank N.A. v Stewart, 97 AD3d 740; Deutsche Bank Natl. Trust Co. v Luden, 91 AD3d 701, 701; Fremont Inv. & Loan v Bertram, 90 AD3d 988; Citimortgage, Inc. v Brown, 83 AD3d 644, 645). Here, the appellants failed to demonstrate a reasonable excuse for their default, and, therefore, it is unnecessary to determine whether they demonstrated the existence of a potentially meritorious defense (see U.S. Bank N.A. v Stewart, 97 AD3d 740; Tribeca Lending Corp. v Correa, 92 AD3d 770, 771; Wells Fargo Bank, N.A. v Cervini, 84 AD3d 789). As a result, those branches of the appellants' motion which were to set aside the foreclosure sale of the subject property and to dismiss the action for lack of standing were also properly denied.
SKELOS, J.P., LEVENTHAL, CHAMBERS and LOTT, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court