| HSBC Bank USA, N.A. v Rotimi |
| 2014 NY Slip Op 06946 |
| Decided on October 15, 2014 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided on October 15, 2014SUPREME COURT OF THE STATE OF NEW YORKAppellate Division, Second Judicial Department
PETER B. SKELOS, J.P.
JOHN M. LEVENTHAL
SYLVIA O. HINDS-RADIX
JOSEPH J. MALTESE, JJ.
2013-01098
(Index No. 1485/09)
v
Oruene Rotimi, appellant, et al., defendants.
Carl E. Person, New York, N.Y., for appellant.
Hinshaw & Culbertson LLP, New York, N.Y. (Schuyler B. Kraus and Khardeen I. Shillingford of counsel), for respondent.
DECISION & ORDER
In an action to foreclose a mortgage, the defendant Oruene Rotimi appeals from an order of the Supreme Court, Kings County (Kurtz, J.), dated November 14, 2012, which denied her motion, inter alia, for leave to interpose a late answer and to dismiss the complaint insofar as asserted against her.
ORDERED that the order is affirmed, with costs.
A defendant seeking to vacate a default in answering a complaint and to compel the plaintiff to accept an untimely answer as timely must show both a reasonable excuse for the default and the existence of a potentially meritorious defense (see CPLR 2004, 3012[d]; Chase Home Fin., LLC v Minott, 115 AD3d 634; Community Preserv. Corp. v Bridgewater Condominiums, LLC, 89 AD3d 784; Taddeo-Amendola v 970 Assets, LLC, 72 AD3d 677).
The defendant Oruene Rotimi (hereinafter the defendant) was served with the summons and complaint in this mortgage foreclosure action and failed to interpose an answer. Under the circumstances of this case, the defendant's purported reliance upon statements from the loan servicer do not constitute a reasonable excuse (see e.g. HSBC Bank USA, N.A. v Lafazan, 115 AD3d 647, 648; Chase Home Fin., LLC v Minott, 115 AD3d at 634; Community Preserv. Corp. v Bridgewater Condominiums, LLC, 89 AD3d at 785). Moreover, the defendant's assertions are belied by the language included in the summons warning her that she was in "IN DANGER OF LOSING" her home, that she should "[s]peak to an attorney or go to the court," and that she "MUST RESPOND BY SERVING A COPY OF THE ANSWER" (see RPAPL 1320; HSBC Bank USA, N.A. v Lafazan, 115 AD3d at 648; Chase Home Fin., LLC v Minott, 115 AD3d at 634-635).
Since the defendant failed to offer a reasonable excuse, it is unnecessary to consider whether she sufficiently demonstrated a potentially meritorious defense (see HSBC Bank USA, N.A. v Lafazan, 115 AD3d at 648; U.S. Bank N.A. v Stewart, 97 AD3d 740).
Accordingly, the Supreme Court properly denied the defendant's motion, among other things, for leave to interpose a late answer and to dismiss the complaint insofar as asserted against her.
SKELOS, J.P., LEVENTHAL, HINDS-RADIX and MALTESE, JJ., concur.
ENTER:Aprilanne Agostino
Clerk of the Court