Thomas v Avelo Mtge.

[*1] Thomas v Avelo Mtge. 2014 NY Slip Op 50638(U) Decided on April 7, 2014 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 7, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., PESCE and ALIOTTA, JJ
2012-1884 Q C.

Lashawn Thomas, Petitioner-Respondent,

against

Avelo Mortgage, in Care of DAVIDSON FINK, LLP and LITTON LOAN SERVICING, in Care of DAVID P. CASE, ESQ., Respondents-Appellants, -and- JCH REALTY CORP., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Gilbert Badillo, J.), dated June 15, 2012. The order granted petitioner's motion to vacate a prior order of the same court dated April 19, 2012 granting, on default, a motion by respondents Avelo Mortgage and Litton Loan Servicing to vacate a prior order of the same court dated November 14, 2011, which had granted the petition to be restored to possession in a summary proceeding pursuant to RPAPL 713 (10).

ORDERED that the order dated June 15, 2012 is reversed, without costs, and petitioner's motion to vacate the April 19, 2012 default order is denied.

In November 2011, petitioner commenced this proceeding by order to show cause and verified petition seeking to be restored to possession of the property at 109-20 200th Street, St. Albans, NY The petition stated that petitioner's address is 109-20 200th Street, St. Albans, NY, and that the respondents named in the petition had "gained occupancy forcibly, without the consent or authorization of the Petitioner, and continue[ ] to forcibly and unlawfully withhold possession from the Petitioner." In addition, petitioner stated that her belongings, clothing, furniture and documents had been thrown out, and the locks had been changed. By order dated November 14, 2011, the court granted the petition upon the default of the respondents.

In April 2012, Avelo Mortgage (Avelo) and Litton Loan Servicing (Litton) moved to, among other things, vacate the November 14, 2011 default order and dismiss the petition pursuant to CPLR 3211 (a) (8). In an affirmation in support of the motion, the attorney for Avelo and Litton argued, among other things, that the Civil Court lacked personal jurisdiction over Avelo and Litton since petitioner had improperly served attorneys who did not represent Avelo and Litton in this Civil Court proceeding, and who were not authorized to accept service of process on behalf of Avelo and Litton. The affidavit of service of the motion indicated that the motion had been mailed to petitioner at 109-20 200th Street, St. Albans, NY By order dated [*2]April 19, 2012, the Civil Court granted the motion on default and dismissed the petition. In May 2012, petitioner moved to restore the action to the calendar and to vacate the April 19, 2012 default order. In support of her motion, petitioner stated that she was unaware that the November 14, 2011 default order had been vacated, as she had been served with the November 14, 2011 order "at an address . . . [p]laintiff [sic] is no longer in, when [the attorney] is aware of a good address for the plaintiff [sic] from the [Supreme Court] Foreclosure Action." Avelo and Litton opposed the motion. By order dated June 15, 2012, the Civil Court granted petitioner's motion. This appeal by Avelo and Litton ensued.

In order to obtain vacatur of the April 19, 2012 default order, petitioner had to demonstrate a reasonable excuse for her default in opposing the motion to vacate the November 14, 2011 default order and dismiss the petition, as well as the existence of a meritorious cause of action (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Mora v Scarpitta, 52 AD3d 663 [2008]). As previously noted, petitioner provided her address as 109-20 200th Street, St. Albans, NY in the instant proceeding. At the time Avelo and Litton moved to vacate the November 14, 2011 default order, petitioner had provided no other address to the Civil Court and, therefore, Avelo and Litton properly served petitioner with their motion by mailing it to the address provided by petitioner. The fact that petitioner had provided another address in a Supreme Court action is irrelevant, as the attorney for Avelo and Litton in this Civil Court proceeding—who did not represent respondents in the Supreme Court action—cannot be deemed to have been aware of an address that petitioner had failed to provide to the Civil Court. Consequently, petitioner failed to demonstrate a reasonable excuse for her default in opposing the motion to vacate the November 14, 2011 default order and to dismiss the petition pursuant to CPLR 3211 (a) (8). Moreover, petitioner failed to establish a meritorious cause of action (see CPLR 5015 [a] [1]).

Accordingly, the order dated June 15, 2012 is reversed and petitioner's motion to vacate the April 19, 2012 default order is denied.

Weston, J.P., Pesce and Aliotta, JJ., concur.
Decision Date: April 07, 2014