BAC Home Loans Servicing, LP v. Parone

126 A.D.3d 923, 7 N.Y.S.3d 195

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 25, 2015
• Docket: 2014-00470
• Status: Published

Opinion

In an action to foreclose a mortgage, the defendants Anthony Parone and Claudia Mancia-Parone appeal from an order of the Supreme Court, Queens County (Kitzes, J.), entered June 12, 2013, which denied their motion, in effect, to vacate a prior order of the same court dated April 30, 2013, granting the plaintiffs unopposed motion pursuant to CPLR 3217 to discontinue the action without prejudice.

Ordered that the order entered June 12, 2013, is affirmed, without costs or disbursements.

The plaintiff commenced this mortgage foreclosure action in 2010, alleging that the defendants Anthony Parone and Claudia Mancia-Parone (hereinafter together the Parones) did not comply with the conditions of the mortgage by failing to make the payments due thereunder. The Parones failed to timely file an answer, and they did not move to extend the time to appear or plead (see CPLR 3012 [a], [d]). Although they attempted to file an answer nearly two years after the complaint was filed and served, they did not move to compel the acceptance of a pleading untimely served (see CPLR 3012 [a], [d]), or to vacate their default in answering or appearing. Thereafter, the plaintiff moved pursuant to CPLR 3217 to discontinue the action. The Parones failed to oppose the motion, and the Supreme Court granted the plaintiffs unopposed motion. Subsequently, the Supreme Court denied a motion by the Parones, in effect, to vacate the prior order granting the plaintiffs unopposed motion to discontinue the action without prejudice.

“A party seeking to vacate an order entered upon his or her default in opposing a motion must demonstrate both a reasonable excuse for the default and a potentially meritorious opposition to the motion” (Dokaj v Ruxton Tower Ltd. Partnership, 91 AD3d 812, 813 [2012]; see CPLR 5015 [a] [1]; Bank of N.Y. v Young, 123 AD3d 1068 [2014]; Schenk v Staten Is. Univ. Hosp., 108 AD3d 661, 662 [2013]). Here, even if the Parones proffered a reasonable excuse for their default, they failed to demonstrate a potentially meritorious opposition to the motion (see CPLR 3217; Venture I, Inc. v Voutsinas, 8 AD3d 475 [2004]; Aison v Hudson Riv. Black Riv. Regulating Dist., 279 AD2d 754, 755 [2001]; see generally Schenk v Staten Is. Univ. Hosp., 108 AD3d at 662).

The Parones’ remaining contention is not properly before this Court.

Accordingly, the Supreme Court properly denied the Parones’ motion, in effect, to vacate the prior order granting the plaintiffs unopposed motion pursuant to CPLR 3217 to discontinue the action without prejudice.

Leventhal, J.P., Hall, Cohen and Maltese, JJ., concur.