Nationstar Mtge., LLC v. Retemiah

Opinion

Nationstar Mtge., LLC v Retemiah

2026 NY Slip Op 04955

August 12, 2026

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This decision is uncorrected and subject to revision before publication in the Official Reports.

Nationstar Mortgage, LLC, respondent,

v

Paul Retemiah, et al., defendants, 2364A Properties Corporation, appellant.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on August 12, 2026

2024-04015, (Index No. 4843/10)

Mark C. Dillon, J.P.

Deborah A. Dowling

Laurence L. Love

James P. McCormack, JJ.

Biolsi Law Group, P.C., New York, NY (Steven Alexander Biolsi of counsel), for appellant.

McCalla Raymer Leibert Pierce, LLC, New York, NY (Brian P. Scibetta of counsel), for respondent.

[*1]

DECISION & ORDER

In an action to foreclose a mortgage, the defendant 2364A Properties Corporation appeals from an order of the Supreme Court, Kings County (Lawrence Knipel, J.), dated April 5, 2024. The order denied that defendant's motion, inter alia, pursuant to CPLR 317 and 5015(a)(1) to vacate, among other things, an order and judgment of foreclosure and sale (one paper) of the same court dated June 15, 2023, issued upon its failure to appear or answer the amended complaint and pursuant to CPLR 3012(d) for leave to serve a late answer.

ORDERED that the order is affirmed, with costs.

In August 2006, the defendant Paul Retemiah executed a note in the principal sum of $350,000, which was secured by a mortgage on certain real property located in Brooklyn. In February 2010, the plaintiff commenced this action against Retemiah, among others, to foreclose the subject mortgage. In 2014, this action was ministerally dismissed. In December 2018, Retemiah conveyed the subject property to the defendant 2364A Properties Corporation (hereinafter the defendant). Thereafter, also in December 2018, the dismissal was vacated and the action was restored to the Supreme Court's active calendar. In June 2019, the court granted the plaintiff's unopposed motion for leave to amend the complaint to join the defendant as a party in this action, and for leave to serve the supplemental summons and amended complaint upon the defendant. In July 2019, the plaintiff served the defendant in accordance with Not-for-Profit Corporation Law § 306 via service of process upon the Secretary of State. The defendant failed to interpose an answer or otherwise timely appear in the action.

By order and judgment of foreclosure and sale dated June 15, 2023, the Supreme Court granted the plaintiff's motion to confirm a referee's report and for a judgment of foreclosure and sale, and directed the sale of the property. Immediately prior to the scheduled foreclosure sale, the defendant moved, inter alia, pursuant to CPLR 317 and 5015(a)(1) to vacate, among other things, the order and judgment of foreclosure and sale and pursuant to CPLR 3012(d) for leave to serve a late answer. The plaintiff opposed the motion. In an order dated April 5, 2024, the court denied the defendant's motion. The defendant appeals.

"'CPLR 317 permits a defendant who has been served with a summons other than by personal delivery to defend the action upon a finding by the court that the defendant did not personally receive notice of the summons in time to defend and has a meritorious defense'" (Chondrite Asset Trust v 34 Dr. Corp., 240 AD3d 657, 658, quoting Xiao Lou Li v China Cheung Gee Realty, LLC, 139 AD3d 724, 724-725; see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141-142). Here, the defendant's submissions failed to establish that it did not receive actual notice of the supplemental summons in time to defend the action pursuant to CPLR 317 (see Chondrite Asset Trust v 34 Dr. Corp., 240 AD3d at 658; Moran v Grand Slam Ventures, LLC, 160 AD3d 944, 945).

"'A defendant seeking to vacate a default in answering a complaint on the basis of excusable default (see CPLR 5015[a][1]) and to compel the plaintiff to accept an untimely answer (see CPLR 3012[d]) must show both a reasonable excuse for the default and the existence of a potentially meritorious defense'" (Chondrite Asset Trust v 34 Dr. Corp., 240 AD3d at 658, quoting Deutsche Bank Natl. Trust Co. v Benitez, 179 AD3d 891, 893; see Wilmington Sav. Fund Socy., FSB v Cabadiana, 230 AD3d 831, 832). "Generally, a corporation's failure to receive copies of process served upon the Secretary of State due to a breach of its own obligation to keep a current address on file with the Secretary of State does not constitute a reasonable excuse for its delay in appearing or answering the complaint" (Bachvarov v Khaimov, 224 AD3d 724, 725; see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d at 142). Here, the defendant's failure to file with the Secretary of State its current address for service of process, without any explanation of its failure, does not constitute a reasonable excuse (see id. at 726; Bookman v 816 Belmont Realty, LLC, 180 AD3d 986, 987-988). Accordingly, the defendant was not entitled to relief pursuant to CPLR 5015(a)(1).

In light of our determination, it is unnecessary to assess whether the defendant demonstrated the existence of a potentially meritorious defense for purposes of either CPLR 317 or 5015(a)(1) (see Chondrite Asset Trust v 34 Dr. Corp., 240 AD3d at 659; Wilmington Sav. Fund Socy., FSB v Cabadiana, 230 AD3d at 832-833).

The parties remaining contentions either are without merit or need not be reached in light of our determination.

Accordingly, the Supreme Court properly denied the defendant's motion, inter alia, pursuant to CPLR 317 and 5015(a)(1) to vacate, among other things, the order and judgment of foreclosure and sale, issued upon its default, and pursuant to CPLR 3012(d) for leave to serve a late answer.

DILLON, J.P., DOWLING, LOVE and MCCORMACK, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court