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HSBC Bank USA, National Ass'n v. Rotimi

121 A.D.3d 855 Court N.Y. App. Div. Decision date 2014-10-15 English

Judges Skelos, J.P., Leventhal, Hinds-Radix and Maltese, JJ., concur.

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p. 855
HSBC Bank USA, National Association, Respondent, v Oruene Rotimi, Appellant, et al., Defendants.
[995 NYS2d 80]

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 [2014]; Community Preserv. Corp. v Bridgewater Condominiums, LLC, 89 AD3d 784 [2011]; Taddeo-Amendola v 970 Assets, LLC, 72 AD3d 677 [2010]).

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 [2014]; Chase Home Fin., LLC v Minott, 115 AD3d at 634 ; Community Preserv. Corp. v Bridgewater Condo

p. 856
miniums, 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 [2012]).

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.

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