Commercial Division Blog

Posted: August 24, 2014 / Categories Commercial, Default Judgment

Court Refuses to Vacate Default Judgment Where Defendant Provides no Reasonable Excuse for his Failure to Answer

On August 5, 2014, Justice Whelan of the Suffolk County Commercial Division issued a decision in Wells Fargo Bank, N.A. v. Pasciuta, 2014 NY Slip Op. 32113(U), granting a default judgment.

In Wells Fargo Bank, the plaintiff moved for default judgment against the defendant and the defendant cross-moved to vacate the default and answer. Notwithstanding the liberality shown by courts to defaulting defendants, the court granted the motion for default judgment, explaining:

A defendant who has failed to appear or answer the complaint must generally provide a reasonable excuse for the default and demonstrate a potentially meritorious defense to the action to avoid the entering of a default judgment or to extend the time to answer. Absent a valid jurisdictional or abandonment defense, a party in default may not appear in the action and contest the plaintiffs right to relief unless the defaulter can establish grounds for the vacatur of his or her default.

The cross motion of defendant Pasciuta rests principally on the grounds to vacate defaults and extend times which appellate case authorities have engrafted in CPLR 317, 3012(d), 2004 and 2005. A defendant moving under CPLR 317 must establish that he or she did not personally receive noticeof the summons in time to defend and that he or she possesses a meritorious defense to the claim of the plaintiff. No demonstration of a reasonable excuse is necessary under CPLR 317, since the statute itself provides for same, namely, non-receipt of personal notice of the summons in time to defend. However, an affidavit of merit by the moving defendant or a proposed answer, verified by such defendant containing the assertion of facts which potentially constitute at least one bona fide defense must be attached to motion papers, in which, relief under this statutes is demanded.

Here, there has been no showing that defendant Pasciuta failed to receive notice of the action in time to defend as the record is replete with evidence otherwise. In any event, the absence of any denial of receipt of the mailings of the summons and complaint to the correct address as attested to in the affidavit of the plaintiffs process server are fatal to the defendant's claim for relief under CPLR 317. His conclusory claims that he only learned of this action in January of 2013 when he first spoke with his current counsel and that he was never personally served with [the plaintiff's] foreclosure complaint are insufficient to establish that he did not receive notice of the summons and complaint in time to defend. Such claims are also insufficient to raise a successful jurisdictional defense of the type contemplated by CPLR 3211(a)(8). . . .

Motions for relief pursuant to CPLR 3012(d) are governed by a different standard than those made under CPLR 317, although the requirement of a showing of a meritorious defense remains. A defendant who has failed to timely appear or answer the complaint must provide a reasonable excuse for the default and demonstrate a meritorious defense to the action when moving to extend the time to answer or to compel the acceptance of an untimely answer. The determination of that which constitutes a reasonable excuse lies within the discretion of the Supreme Court. Where the delay in moving to vacate is lengthy, the moving party must offer a reasonable explanation for such delay as well as one for the initial default.

(Internal quotations and citations omitted) (emphasis added).

The court went on to hold, based on the facts presented by the defendant, that there was not a reasonable explanation for the delay. Moreover, the court in addition found that the defendant "failed to demonstrate his possession of a bona fide defense to the plaintiffs claims for foreclosure and sale."