U.S. Bank N.A. v Sieger

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U.S. Bank N.A. v Sieger 2018 NY Slip Op 32534(U) October 2, 2018 Supreme Court, Suffolk County Docket Number: 005007/2013 Judge: James Hudson Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] Short Form Order PRESENT: HON. JAMES HUDSON Acting Justice of tlte S upreme Court x--------------------------------------------------------------x INDEX N0. :005007/2013 U.S. 13AKK NATIONAL ASSOCIATION. AS TRUSTEE FOR CTTTGROUP MORTGAGE LOAN TRUST 2006Wf H E2, ASSET BACKED P ASS-T IJ ROUGH CF.RTIFICAl'F,S SF: RI ES 2006-WFHE2, Plainti ff. MOT . SEQ. NO.: 003-MG; CASE OISP 004-MD ; C ASEDl SP SHAPIRO. DICARO & BARAK, LLC Attorneys fo r the Plainti ff 175 Mile Crossing Boulevard Rochester, NY 14624 -agains l- HAI. STEGER. COMMISSIONER OF TAXATION AN D FINANCE - CIVIL EN FOR CEMENT, TO\VN SUPERVISOR TOWN OF RROOKTI A VEN, ".J OHN DOE #1 " through ''JOHN DOE # 12". MARVIN EVAN SCH IFF. PC Attorney for Hal S ieger One Old Cou ntry Road, Suite 125 Carle Place. NY 11514 the last 12 names being fi ctitious and unknown to plaint iff. the person or part ies intended being the tenants. occupants, persons or corporat ions, if any, having or claiming an interest in or lien upon the prem ises described in the compla int. Defe n dants . x--------------------------------------------------------------x U pon the follow ing pape rs numbered I tu J 8 read on this Motion/Order 10 Show Cause fo r Judgment of Foreclosure and Sale (003 ); and Notice o f Cross Morion and supporting papers I 7-1 8 (004 ); {t111d 11ftea lre111i11g eou11sel i11 st11,po11 ,md o pp(>~ed to the: 11 1otio11) it is. ORDERED that the moti on (seq. no. :003) of Pi a in ti IT req uesting an Order of Judgment of Foreclosure and Sale is granted: and il is further Page 1 of 5 [* 2] Index So. :005007 ]()I J /.,'..\'. Bank Sa1w11al. lssociatio11. et al 1• Hal Sie~itr. et 11/., ORDERED chat the cross motion (st:q. no.:004) of Defendant Hal Sieger requesting an order vacating the default or Defendant Hal Sieger (.. Defendant'.): granting Defendant leave to serve and file a late answer: dismissing the foreclosure case. is den ied in its entirctv. ' ~ Case History This is a matter see king rorcclosure and sa k or rental real rroperty situate in Wyandanch. Suffolk County. New York. On May 7th. 2006 Defendant/ Mortgagor Hal Sieger closed on a first mortgage loan sccun:d by a note and mortgage on 33 Lake Drive. Wyandanch. NY 11798. Defendant ceased payment July l 't. 2009. Thereafter. on February 19th. 2013 Plaintiff commenced its foreclosure action. On March 18th, 2013 Pia inti ff effected service of its summons and complaint and homeowner' s foreclosure notice pursuant to CPLR § 308 ( I) by in-hand service upon the Defe ndant. On May 28th. 20 13 Defendant's Allorney formed a notice or appearance. On Jul y I61h , 20 13 Defendant sl'rved his answer. On May 211J, 2014 a CPLR Rule 3408 mandatory settlement conkrencc was scheduled and canceled · as Defendan t was determined to be ineli gible. On March 16. 2015 Plaintiff Ii led its motion for an order of judgment of foreclosu re and sale. On August I•t. 2016 Plaintiff withdrew its motion and re-filed for that order of judgment or forec losure and sale on January 51h, 2017, sa me being motion sequence no.:003. Defendant filed a cross-motion to vacate its default on March JSl. 20 17 : same being motion sequence no.:004. Cou rt O bse rvations It is noted at the outset that Def'endant served its untimely C1nswer .July I 6l11 • 20 13,l'our ( 4) months after personal. in-hand service of the summons and complaint upon Ilal Sieger. CPLR Rul e 320 (a) requires an appearance \Vithin twenty (20) days after service or the summons. The case record contains an affidavit of' service stating that the complaint was served \Vi lh the summons. Defcndanc' s answer was clue on or before April 8111 • 20l3. Defendant. in his cross-mot ion offers no reason nor excuse for his untimely answer. Defendant docs not appear to have taken any action in an attempt to rectify his default prior to the March I~l. 2017 cross-motion: nearly four ( 4) years after his default. Based on the record. lhc Court is not persuaded that Defendant's default is in any way. shape or form "de 111ini11111s .. as contended by Defendant' s Counsel. Defendant' s Counsel, by hi s tiled notice of appearance. has represented Defendant si nce May 28 1h. :2013. Counsel foi Is to make any argument in defense or L:xplanation or De fondant 's de fault or his reason for not ha\'ing requested lh at hi s client 's default be vacated during the four (4) years he has represented the Dctendant. prior lo the instant cross-motion. f>age 2 of 5 [* 3] U S. Bunk .Vurional As.rnciwum. el al. 1· Ila/ Siega . t' / ul.. lnd~·x No. · ()()500/, ~0 /3 Analysis of Defendant 's Cross-Motion Limited to Co nsideration of Reason or Excuse for His Default Oefendanl·s Counsel in his affirmation in support or thc cross motion (seq. no.:004) begins his argument for relief by asserting: .. Assuming argue11do that Sieger ,,·as deemed to be in default.. .. " There is no argument on thi s point. Dd~nclant Sieger is in tkfau ll. The n:levanl question is does Dd'<:ndant Sieger orfcrs any viab le exi..:usc or reason for hi s clefoult sul'ficient lo order that default vacated? Defendant ·s Counsd. in his nflirmation avers: "Defendant Siegcr's ext:usnbk default is based in the fact thnt this action \\"<ls. upon in formation and bdicf initial!) assigned to the Forcclnsure Settlement Conference ··Par(t)" resultin g in conrusion for Defendant with regard to vvhen an Answer would be required .'' Defendant's Counsel further avers "while Defcndanl·s Verified Answer was served beyond the time frame set forth in the CPLR. it is respectfull y submitted that any delay was de minimus." The Court docs not agree that a four (4) month de lay in answering that which wa personally served in hand is de minimus. Jt is noted by the Court that Defendant's Attorney in his anirmation is attempting to testify without personal knowledge or the facts and circumstances or wh ich he speaks. therefore such statements are a nullity. Despite Counsel's knowledge of this principal of legal practice he offers no affidavit of Defendant Sieger as to what. injact, Defendant Sieger believes or believed. in regard to his default. ·· ... 1hi..: ban.: aftirmmion ot'(an) mcorncy \Yho d\.:111un:;1n1t\.:d no personi.ll knowkd3c ...)r the (matter) ... Such an a ftirmation by counsel is without e\·idcntiary value and thus unarni Iing.. (Zuckerman v. Ci~l' of New Yvrk , 49 NY2d 557, 563. 404 NE2d 7 18.720, 427 NYS2d 595 rI 9801; citing Columbia Ribbvn & Carbon 1Wfg. Co. v. A -1-A Corp.. 42 NY2d 496.500, 369 NE2d 4. 398 NYS2d I 00-+ [ 19771; Israelson v. Rubin . 20 AD2d 668, 247 NYS2d 85 (2d D~pt l 9641. atfd. 14 NY2d 887. 200 NE2d 774. 252 NYS2d 90 [ 1964]: lamberta "·long Is. R. R. , 51 AD2d 730, 3 79 NYS2d I 39 [2d Dept 1976)). or The affirmation Counsel. not based upon personal knowledge ol' the facts and without supporting documentation, is insufficienL (Mobil Oil Corporation v. Pe1111a. 139 AD2d 50 I. 526 NYS2d 849 I2d Dept 1988J: see Kartiga11er Assocs. v. Town of New Page 3 of 5 [* 4] U. S. Bank National A.u octation, it/ al. i: 1/111 Sh•gf!r. t'I al.. Index No.:005007 20 13 Windsor. 132 A02d 527, 517 NYS2d 266 I2d Dept 1987]. Iv. denied 70 NY2d 612. 518 NE2d 7, 523 NYS2<l 496 l.1987j). Had Dcfendnnt Sieger offered the af'oresai<l excuses by ani<la\ it it wou ld not alter th e la<.:t that the stat<:<l reasons are insurtici1.:nt to meet his burden of demonstrating reasonahk excuse for his default. The proffered excuses also foil to include supponing documentation. A determination or what constitutes a reasonable excuse ..... lies within the sound discretion ol'Lhe Supreme Court" (U.S. Bank National Association v. Grubb. 162 AD3d 823, 824. 79 NYS3d 2 l 0 I2d Dept 20 18]; E quicrerlit Corp. of America 1·. Campbell. 73 AD3d 111 9. 1120. 900 NYS2d 907 f2d Dept 2010]: see also Star Industries, In c. 1°. lu11ovati11e Beverages, Inc .. 55 /\D3d 903. 90-t 866 NYS2d 857 f2d Dept 20081). By way or exampk. a good fa ith bdief' in settlement. supported b\' substantial evidence. constitutes a reasonable excuse for default - holding that a party·s engagem1:nt in settlement discussions is a reasonable excuse under CPLR Rul e 5015 (a) [ 1l ( Scar/ell v. M cCarthy. 2A03d 823, 768 NYS2d 342 [2d Dept 20091; see also Le'1rma11 v. lake Katonah Club. 295 AD2d 322. 744 NYS2d 338 f2d Dept 20021). "A detendan t seeking to vacate a default in answering a complaint and to compel the plaintiff to accept an unti1rn.:ly answer must show both a reasonable excuse fo r the default and the existence of a potentially meritorious defense" (U.S. Bank N ational Association v. Grubb. 162 AD3d 823. 79 NYS3d 2 J0 f2d Dept 20 18J: quoting Citimortgage, lnc. l'. Stover. 124 AD3d 575. 576. 2 NYS3d 14 7 l2d Dept 2015 J: see U.S. Bank, N.A. v, Samuel. 138 AD3d 11 05. 1106. 30 NYS3d 305 [2d Dept 20161: Gershman v. Ahmad. 131 AD3d 1104. 11 05. 16 NYS3d 836 12d Dept 20 151). "Since delenclant fai led to offer a reaso nnble exc use. it is unnecessa ry to consider whether they demonstrated the ex istence ofa potentially meritorious de1ense·· ( Dwyer Age119 ' of Mah opac, LLC v. Dring Holding Corp..- NYS3d- 2, 2018 WL 434464 7 [2d Dept 2018]: HSBC Bank USA, N.A. 1•. Lafaza11. 80 AD3d 651. 9 14 NYS2<l 67'2 [2d Dept 20111: see U.S. Bank, IV.A. v. Ste wart. 97 ADJd 740. 948 NYS2d 411 [2d Dept 20 12 1). Defendant has fo iled in his burden to offer any viable excuse or reason sufficient LO warrant his default being vaca ted. A party mny not appea l rrom an order entered upon his clcfoull. the proper remedy heing an application to vacate the de fault . made to the court which issued the order ( Ca!vag110 v. N ationwide 1W11t11al Fire fll s 11ra11ce Company . I I0 A02d 741. 487 NYS2d 835 [2d Dept P<ige -l of 5 [* 5] U. S. 81111/.. .Vu1io11ul Assudu1i1111, l'I <1/. 1· llHf S il',l.!i:r. l'I lndc.\' No. · 00500"'!~013 ti!.. 1985 j). [I i s default must be ~xplaincd. he determ ined to have been meritorious and the default 'acatcd prior to hi s e111cring into further litigation in his case. lkfendant has tailed to st<He a kuallv '. suffo.:ient basis to vacate his default. Defendant's further arguments are d ismissed . The reli ef n:qucsled hy Defendant in hi s cross motion is denied in its entirety. The Judgment ol' f-on:closure and Sale submillcd by Plainti IT will be signed simultaneously with this Orckr. The !'oregoing decision constitutes the Order DATED: OCTOBER 2'"1, 2018 RIVERHEAD , NY Page 5 of 5 or the Court.

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