In an October 17, 2011 decision by Justice Whelan, the court denied the defendants-mortgagors’ motion for leave to file a late answer pursuant to CPLR 3012(d). Plaintiff commenced the mortgage foreclosure action in September 2009, and after multiple settlement conferences were unsuccessful, defendants failed to submit an answer or otherwise timely appear. The court denied the defendant’s motion which sought to relieve them of their default in answering and for leave to serve and file a late answer because they failed to provide a reasonable excuse for their default. The sole excuse proffered by defendants was that after receiving the summons complaint, they panicked and relied exclusively on advice they received from a loan servicing agent, which, according to the defendants, was to “calm down and not worry about the legal paper work.” The court held that this excuse consisted of “nothing but vague, conclusory and unsubstantiated claims.” The court also found that there was no evidence of justifiable reliance on the advice because the summons included a warning, mandated by RPAPL 1320, which explicitly: advised the defendants to speak to an attorney; informed them that they “must respond by serving a copy of the answer”; and alerted them that failing to do so could lead to a default judgment and the loss of their home. The court noted that the defendants’ failure to demonstrate a reasonable excuse obviated the need to examine whether they had a potentially meritorious defense.
The Bank of New York v. Jayaswal, Sup Ct, Suffolk County, October 17, 2011, Whelan, J, Index No. 38145/09.