Deutsche Bank National Trust Co. v. Thompson

Appellate Division of the Supreme Court of New York

Deutsche Bank National Trust Co. v. Thompson

2017 NY Slip Op 4405, 151 A.D.3d 460, 53 N.Y.S.3d 529

Appellate Division of the Supreme Court of the State of New York·Decided June 6, 2017·No. 4185 380995/07·Published

Opinion

Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered on or about December 9, 2015, which denied plaintiff Deutsche Bank National Trust Company, as Trustee for Long Beach Mortgage Loan Trust 2006-4’s (Deutsche Bank) motion to vacate its default and restore the action to the calendar, unanimously affirmed, without costs.

*461 The motion court determined that the discrepancy between the physical description of the person personally served, according to the affidavit of service, and that of defendant warranted a traverse hearing (see Matter of Devon M., 169 AD2d 690, 691 [1st Dept 1991]). After several adjournments, Deutsche Bank failed to appear at the final scheduled hearing.

Even if Deutsche Bank has provided a reasonable excuse for default based on law office failure (see Dokmecian v ABN AMRO N. Am., 304 AD2d 445, 445 [1st Dept 2003]), the motion to restore was properly denied. Deutsche Bank provided no proof on the motion that it could have prevailed at the traverse hearing.

Concur—Renwick, J.R, Richter, Feinman, Gische and Kahn, JJ.

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Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered on or about December 9, 2015, which denied plaintiff Deutsche Bank National Trust Company, as Trustee for Long Beach Mortgage Loan Trust 2006-4’s (Deutsche Bank) motion to vacate its default and restore the action to the calendar, unanimously affirmed, without costs.

*461 The motion court determined that the discrepancy between the physical description of the person personally served, according to the affidavit of service, and that of defendant warranted a traverse hearing (see Matter of Devon M., 169 AD2d 690, 691 [1st Dept 1991]). After several adjournments, Deutsche Bank failed to appear at the final scheduled hearing.

Even if Deutsche Bank has provided a reasonable excuse for default based on law office failure (see Dokmecian v ABN AMRO N. Am., 304 AD2d 445, 445 [1st Dept 2003]), the motion to restore was properly denied. Deutsche Bank provided no proof on the motion that it could have prevailed at the traverse hearing.

Concur—Renwick, J.R, Richter, Feinman, Gische and Kahn, JJ.

Deutsche Bank National Trust Co. v. Thompson, 2017 NY Slip Op 4405, 151 A.D.3d 460, 53 N.Y.S.3d 529 (N.Y. Ct. App. 2017).

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Opinion

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