

Deutsche Bank Natl. Trust Co. v Lopez (2017 NY Slip Op 01804)





Deutsche Bank Natl. Trust Co. v Lopez


2017 NY Slip Op 01804


Decided on March 15, 2017


Appellate Division, First 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 March 15, 2017

Friedman, J.P., Andrias, Gische, Webber, JJ.


3370 380910/11

[*1]Deutsche Bank National Trust Company, etc., Plaintiff-Appellant,
vSamuel Lopez, Defendant-Respondent, Ana Lopez, et al., Defendants.


Hogan Lovells US LLP, New York (Benjamin P. Jacobs of counsel), for appellant.

Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered April 15, 2014, as amended by order entered May 9, 2014, which granted defendant Samuel Lopez's motion to dismiss the complaint, and denied as academic plaintiff's motion for a judgment of foreclosure and sale, upon default, unanimously reversed, on the law and the facts, without costs, defendant's motion denied, and plaintiff's motion granted. The Clerk is directed to enter judgment accordingly.
Defendant failed to proffer a reasonable excuse for his default in answering the complaint and his failure to respond to plaintiff's motion for a reference and a default judgment (see Citibank, N.A. v K.L.P. Sportswear, Inc., 144 AD3d 475, 476-477 [1st Dept 2016]). His assertion that he was not sure if the summons and complaint were real is unavailing (see Dorrer v Berry, 37 AD3d 519 [2d Dept 2007]), especially because he cites no efforts he made to determine the legitimacy of these papers, although the name, address and phone number of plaintiff's counsel is prominently displayed on them. Moreover, defendant offered no explanation for failing, after attending a settlement conference, to seek to serve either an answer to the complaint or opposition to the motion for a reference and default judgment, which he does not deny receiving. Having so defaulted, and having failed to proffer a reasonable excuse for his defaults, defendant is precluded from moving to dismiss the foreclosure action on the ground of plaintiff's alleged failure to comply with RPAPL 1304 (see PHH Mtge. Corp. v Celestin, 130 AD3d 703, 704 [2d Dept 2015]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MARCH 15, 2017
CLERK


