U.S. Bank Trust, N.A. v DeLuca

U.S. Bank Trust, N.A. v DeLuca 2019 NY Slip Op 05179 Decided on June 26, 2019 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 26, 2019 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
ALAN D. SCHEINKMAN, P.J.
JOHN M. LEVENTHAL
FRANCESCA E. CONNOLLY
VALERIE BRATHWAITE NELSON, JJ.
2016-11675
(Index No. 31920/11)

[*1]U.S. Bank Trust, N.A., etc., respondent,

v

Carl DeLuca, appellant, et al., defendant.

The Schwartz Law Group, P.C., Bethpage, NY (Kenneth B. Schwartz of counsel), for appellant.

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

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Carl DeLuca appeals, by permission, from an order of the Supreme Court, Rockland County (Robert M. Berliner, J.), dated November 7, 2016. In the order, the Supreme Court declined to sign the defendant Carl DeLuca's proposed order to show cause.

ORDERED that the order is affirmed, with costs.

The defendant Carl DeLuca (hereinafter the defendant) defaulted by failing to appear in this action to foreclose a mortgage on real property that he owned. The Supreme Court issued a judgment of foreclosure and sale dated April 4, 2016, in favor of the plaintiff and against the defendant, among others. On November 3, 2016, the defendant presented a proposed order to show cause to the court, pursuant to CPLR 5015(a)(1), (3) and (4), to vacate the judgment claiming, inter alia, that the summons and complaint, as well as the notice of motion for leave to enter a default judgment, were improperly served. The proposed order to show cause also sought a temporary restraining order staying the foreclosure sale of the subject property scheduled for November 9, 2016. The Supreme Court declined to sign the proposed order to show cause and issued an order to that effect dated November 7, 2016.

By decision and order on motion dated January 9, 2017, this Court granted the defendant leave to appeal from the Supreme Court's order declining to sign the proposed order to show cause and stayed the foreclosure sale of the subject property pending the hearing and determination of the appeal.

"The court in a proper case may grant an order to show cause, to be served in lieu of a notice of motion, at a time and in a manner specified therein" (CPLR 2214[d]). The CPLR does not give a definition of a "proper case," so the decision to sign an order to show cause is within the judge's discretion (see Siegel & Connors, NY Prac § 248 [6th ed June 2019 Update]). Upon review of the record, the Supreme Court did not improvidently exercise its discretion by declining to sign the proposed order to show cause, as the defendant failed to rebut the presumption of proper service [*2]of the relevant documents established by the process servers' affidavits (see US Bank, N.A. v Daskal, 164 AD3d 709, 711; HSBC Bank USA, N.A. v Whitter, 159 AD3d 942, 945; Deutsche Bank Natl. Trust Co. v O'King, 148 AD3d 776, 776-777).

In light of our determination, the plaintiff's remaining contentions need not be reached.

Accordingly, the order of the Supreme Court should be affirmed.

SCHEINKMAN, P.J., LEVENTHAL, CONNOLLY and BRATHWAITE NELSON, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court