Ocean Independent Bank v. Tyrnauer

176 A.D.2d 926, 575 N.Y.S.2d 782, 1991 N.Y. App. Div. LEXIS 13677

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 28, 1991
• Status: Published

Opinion

— In an action to foreclose a mortgage, the defendants Juda Tyrnauer and Ignatz Tyrnauer appeal from (1) an order of the Supreme Court, Orange County (Ingrassia, J.), dated December 28, 1989, which granted the plaintiffs motion for leave to enter a default judgment upon their default in answering and denied their cross motion to compel the plaintiff to accept their late answer, and (2) an order of the same court, entered January 24, 1990, which appointed a Referee to compute the amount due.

Ordered that the orders are affirmed, with one bill of costs.

We find that the default was deliberate and was not validly explained. Although ongoing settlement negotiations may constitute a valid excuse for a defendant’s failure to timely serve an answer (see, Pettinato v Sunscape At Bay Shore Home Owners Assn., 97 AD2d 434), it does not appear from this record that there were ongoing settlement negotiations between the parties, nor was any extension of time to answer granted by the plaintiff’s attorney. Thompson, J. P., Kunzeman, Lawrence and Miller, JJ., concur.