Josovich v. CeylanJosovich v. Ceylan
Ordered that the orders dated October 31, 2013, and March 3, 2014, respectively, are affirmed; and it is further,
Ordered that the orders dated February 14, 2013, and February 21, 2014, respectively, are affirmed insofar as appealed from, and it is further,
Ordered that one bill of costs is awarded to the respondents.
To avoid the entry of a default judgment, a party must show a reasonable excuse for the default and a potentially meritorious defense (see U.S. Bank N.A. v Alba, 130 AD3d 715 [2015]; Fried v Jacob Holding, Inc., 110 AD3d 56, 60 [2013]; King v King, 99 AD3d 672 [2012]). Here, the affirmation of the attorney representing the third-party defendant Michael F. Kelly was sufficient to establish that the failure to submit a timely answer was not willful, but rather, was due to law office failure (see Thompson v County of Suffolk, 61 AD3d 962, 963 [2009]; Valure v Century 21 Grand, 35 AD3d 591 [2006];
The Supreme Court properly denied the defendants/third-party plaintiffs’ motion to vacate an order dated June 17, 2013, made on the ground that the order was violative of the automatic stay occasioned by the filing of a bankruptcy petition by the defendant/third-party plaintiff Michael Ceylan (see
The Supreme Court properly denied that branch of the motion of the defendants/third-party plaintiffs which was for leave to renew their opposition to the motion of the third-party defendant David Fainkich to dismiss the third-party complaint insofar as asserted against him. The new facts offered would not change the prior determination (see
The Supreme Court properly denied that branch of the motion of the defendants/third-party plaintiffs which was for a mandatory settlement conference pursuant to
The Supreme Court providently exercised its discretion in denying that branch of the motion of the defendants/third-party plaintiffs which was for leave to amend their answer (see
The plaintiff demonstrated her prima facie entitlement to judgment as a matter of law by producing the mortgage, the unpaid note, and evidence of default (see Onewest Bank, FSB v Prince, 130 AD3d 700 [2015]; Bayview Loan Servicing, LLC v 254 Church St., LLC, 129 AD3d 650 [2015]; Wells Fargo Bank, N.A. v Webster, 61 AD3d 856 [2009]). In opposition, the defendants/third-party plaintiffs failed to raise a triable issue of fact sufficient to defeat the motion. “Since title to the property had closed and the deed was delivered, ‘any claims [they] might have had arising from the contract of sale were extinguished by the doctrine of merger unless there was a clear intent evidenced by the parties that a particular provision of the contract of sale [would] survive the delivery of the deed‘” (Bibbo v 31-30, LLC, 105 AD3d 791, 792 [2013], quoting Ka Foon Lo v Curis, 29 AD3d 525, 526 [2006]; see Rojas v Paine, 101 AD3d 843 [2012]; Novelty Crystal Corp. v PSA Institutional Partners, L.P., 49 AD3d 113, 115 [2008]). The defendants/third-party plaintiffs’ contention that they are entitled, pursuant to a rider to the mortgage, to an offset against the principal of the note for unpaid liens and violations is not a defense to foreclosure, but is properly raised before the referee in computing the amount due (see Matter of American Tax Funding, LLC v Saita, 107 AD3d 1134, 1135 [2013]; 1855 E. Tremont Corp. v Collado Holdings LLC, 102 AD3d 567, 568 [2013]; Johnson v Gaughan, 128 AD2d 756, 757 [1987]).
The appeals from the two orders dated February 26, 2014, which both denied applications to sign orders to show cause, must be dismissed, as the orders are not appealable as of right, and we decline to grant leave to appeal (see
We decline Kelly‘s request to impose sanctions upon the defendants/third-party plaintiffs for prosecuting an allegedly frivolous appeal from the order dated February 14, 2013 (see
DILLON, J.P., SGROI, COHEN and LASALLE, JJ.