Sudit v. Labin , 148 A.D.3d 1078 ( 2017 )

Sudit v Labin (2017 NY Slip Op 02080)

Sudit v Labin

2017 NY Slip Op 02080

Decided on March 22, 2017

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 March 22, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
CHERYL E. CHAMBERS, J.P.
LEONARD B. AUSTIN
SYLVIA O. HINDS-RADIX
BETSY BARROS, JJ.

2015-06353
(Index No. 12235/08)

[*1]Vladimir Sudit, doing business as VS International, respondent,

v

Esther M. Labin, et al., defendants, Moshe Leib Lax, etc., et al., appellants.

Sanders, Gutman & Brodie, P.C., Brooklyn, NY (D. Michael Roberts of counsel), for appellants.

DECISION & ORDER

In an action to foreclose a mortgage, the defendants Moshe Leib Lax and Zlaty Schwartz, as preliminary executors of the estate of Chaim Lax, and Citibank, N.A. as successor trustee to US Bank National Association, as trustee for MASTR Adjustable Rate Mortgages Trust 2007-HFI, Mortgage Pass-Through Certificates, Series 2007-HFI appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Schmidt, J.), dated February 11, 2015, as denied their cross motion for a default judgment on their counterclaims and granted that branch of the plaintiff's cross motion which was for leave to serve a late reply to their counterclaims.

ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.

The facts underlying this action are stated in our decision and order on a related appeal (see Sudit v Labin, _____ AD3d _____ [Appellate Division Docket No. 2014-08061; decided herewith]), and are supplemented here only as necessary.

The plaintiff defaulted in replying to counterclaims for equitable subrogation and unjust enrichment which were asserted in the amended answer served on him by the defendants Moshe Leib Lax and Zlaty Schwartz, as preliminary executors of the estate of Chaim Lax, and Citibank, N.A. as successor trustee to US Bank National Association, as trustee for MASTR Adjustable Rate Mortgages Trust 2007-HF1, Mortgage Pass-Through Certificates, Series 2007-HF1 (hereinafter collectively the appellants), and/or their respective predecessors in interest.

In order to successfully oppose the appellants' cross motion for leave to enter a default judgment on their counterclaims, and to prevail on that branch of his cross motion which was for leave to serve a late reply to their counterclaims, the plaintiff was required to demonstrate a reasonable excuse for his default and a potentially meritorious defense to the counterclaims (see CPLR 5015[a][1]; Citicorp Trust Bank, FSB v Makkas, 127 AD3d 907; People's United Bank v Latini Tuxedo Mgt., LLC, 95 AD3d 1285, 1286; Adolph H. Schreiber Hebrew Academy of Rockland, Inc. v Needleman, 90 AD3d 791, 792).

Contrary to the appellants' contention, the Supreme Court providently exercised its discretion in determining that the plaintiff offered both a reasonable excuse (see Kramarenko v New [*2]York Community Hosp., 134 AD3d 770, 772; Brinson v Pod, 129 AD3d 1005, 1009; Suede v Suede, 124 AD3d 869, 871), as well as a potentially meritorious defense to the counterclaims (see King v Pelkofski, 20 NY2d 326, 333-334; Arbor Commercial Mtge., LLC v Associates at the Palm, LLC, 95 AD3d 1147, 1149-1150; Elwood v Hoffman, 61 AD3d 1073, 1075).

Accordingly, the Supreme Court properly denied the appellants' cross motion for a default judgment on their counterclaims, and properly granted that branch of the plaintiff's cross motion which was for leave to serve a late reply to their counterclaims.

CHAMBERS, J.P., AUSTIN, HINDS-RADIX and BARROS, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court