In re Jefferson County

295 A.D.2d 934, 745 N.Y.S.2d 733, 2002 N.Y. App. Div. LEXIS 6328

Opinion

—Appeal from an order of Supreme Court, Jefferson County (Gilbert, J.), entered September 19, 2001, which, inter alia, granted the motion of respondent The CIT Group/ Consumer Finance, Inc. (NY) to vacate a judgment of foreclosure, dated August 6, 2001, with respect to Tax Parcel No. 73.00-1-13.7.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is denied and the default judgment is reinstated.

Memorandum: Supreme Court abused its discretion in granting respondent’s motion pursuant to CPLR 5015 (a) (1) seeking to vacate the judgment of foreclosure (see e.g. Crespo v A.D.A. Mgt., 292 AD2d 5). Respondent failed to demonstrate either a reasonable excuse for its default or a meritorious defense to the action (see Shouse v Lyons, 265 AD2d 901, 902; Kenny v Vigliano [appeal No. 2], 182 AD2d 1134, 1134, citing Gray v B.R. Trucking Co., 59 NY2d 649, rearg dismissed 59 NY2d 966, 60 NY2d 586). Respondent contends that it established a reasonable excuse for its default based on the fact that it closed one of its offices and did not notify petitioner of a change of address, so that it did not receive the notice and petition of foreclosure. Any lack of notice based on respondent’s own failure to provide petitioner with an updated address would not constitute a reasonable excuse for the default (see Crespo, 292 AD2d at 9-10). In any event, respondent received actual notice at one of its other offices. We further reject the contention of respondent that it established a meritorious defense based on its ability to pay the taxes at issue (see Jamaica Sav. Bank v Sutton, 42 AD2d 856, 857; cf. Carr v Decesare, 280 AD2d 852, 853; Solomon Abrahams, P.C. v Peddlers Pond, Holding Corp., 125 AD2d 355, 357). Present—Green, J.P., Hayes, Hurlbutt, Burns and Gorski, JJ.