Credit-Based Asset Servicing & Securitization, LLC v. Chaudry

304 A.D.2d 708, 757 N.Y.S.2d 791

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 21, 2003
• Status: Published

Opinion

In an action to foreclose a mortgage, the defendant Marie Louis Chaudry appeals from a judgment of the Supreme Court, Rockland County (O’Rourke, J.), dated March 13, 2002, which, upon her failure to appear or answer and upon an order of the same court (Murphy, J.), dated June 9, 1999, denying her motion to vacate her default, granted foreclosure and sale of the subject premises.

Ordered that the judgment is affirmed, with costs.

Although the judgment dated March 13, 2002, was entered upon the appellant’s default, appellate review of the order dated June 9, 1999, is not precluded since the appellant may obtain review of “matters which were the subject of contest below” (James v Powell, 19 NY2d 249, 256 n 3 [1967]).

On a motion to vacate a default in appearing or answering pursuant to CPLR 5015 (a) (1), a movant must demonstrate a reasonable excuse for the default and a meritorious cause of action or defense (see CPLR 5015 [a]; Alliance Prop. Mgt. & Dev. v Andrews Ave. Equities, 70 NY2d 831 [1987]; Eugene Di Lorenzo, Inc. v Dutton Lbr. Co., 67 NY2d 138 [1986]; Mary Immaculate Hosp. v New York Cent. Mut. Fire Ins. Co., 296 AD2d 385 [2002]). The appellant failed to offer a reasonable excuse for her default in failing to appear or answer the plaintiff’s complaint in this action.

The appellant’s remaining contentions are either academic, unpreserved for appellate review, or based on matter dehors the record. Santucci, J.P., Schmidt, Adams and Cozier, JJ., concur.