

Maspeth Fed. Sav. & Loan Assn. v Brooklyn Heritage, LLC (2016 NY Slip Op 02783)





Maspeth Fed. Sav. & Loan Assn. v Brooklyn Heritage, LLC


2016 NY Slip Op 02783


Decided on April 13, 2016


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 April 13, 2016
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

RANDALL T. ENG, P.J.
WILLIAM F. MASTRO
JOHN M. LEVENTHAL
ROBERT J. MILLER, JJ.


2014-07053
 (Index No. 43242/07)

[*1]Maspeth Federal Savings and Loan Association, respondent, 
vBrooklyn Heritage, LLC, appellant, et al., defendants.


Kenneth R. Berman, Forest Hills, NY, for appellant.
Mark L. Cortegiano, Middle Village, NY, for respondent.

DECISION & ORDER
In an action to foreclose a mortgage, the defendant Brooklyn Heritage, LLC, appeals from an order of the Supreme Court, Kings County (Ash, J.), dated June 6, 2014, which denied its motion pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against it.
ORDERED that the order is affirmed, with costs.
In this mortgage foreclosure action, the defendant Brooklyn Heritage, LLC (hereinafter BH), appeals from an order denying its motion pursuant to CPLR 3215(c) to dismiss the complaint as abandoned insofar as asserted against it.
The failure to timely seek a default on an unanswered complaint or counterclaim may be excused if "sufficient cause is shown why the complaint should not be dismissed" (CPLR 3215 [c]). This Court has interpreted this language as requiring both a reasonable excuse for the delay in timely moving for a default judgment, plus a demonstration that the cause of action is potentially meritorious (see LNV Corp. v Forbes, 122 AD3d 805, 806; Giglio v NTIMP, Inc., 86 AD3d 301, 308). The determination of whether an excuse is reasonable in any given instance is committed to the sound discretion of the motion court (see Giglio v NTIMP, Inc., 86 AD3d at 308). Here, the plaintiff showed a reasonable excuse for the delay and a potentially meritorious cause of action. Thus, under the circumstances of this case, the Supreme Court providently exercised its discretion in denying BH's motion pursuant to CPLR 3215(c) to dismiss the complaint insofar as asserted against it (see LNV Corp. v Forbes, 122 AD3d at 806-807).
The parties' remaining contentions are without merit.
ENG, P.J., MASTRO, LEVENTHAL and MILLER, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


