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Inadequate Excuse for Delay In Answering Complaint—Motion to Vacate Default Judgment Should Have Been Denied

The Second Department determined Supreme Court should not have granted the bank’s (BAC’s) motion to vacate a default judgment in a foreclosure action.  The bank’s excuse (clerical error) was conclusory and belied by a pattern of neglect:

“To defeat a facially adequate CPLR 3215 motion, a defendant must show either that there was no default, or that it has a reasonable excuse for its delay and a potentially meritorious defense” … . “Whether a proffered excuse is reasonable is a sui generis determination to be made by the court based on all relevant factors, including the extent of the delay, whether there has been prejudice to the opposing party, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits” … .

Here, BAC’s proffered excuse, that its default in appearing and answering the complaint was due to a clerical error, was unsubstantiated, conclusory, and inadequately explained, and, therefore, did not constitute a reasonable excuse for the default … . Moreover, the record demonstrates that the alleged mistake was not an isolated error, but part of a pattern of “repeated neglect” … . In that regard, BAC failed to present a reasonable excuse for its further delay, after being apprised of its default, in cross-moving to vacate its default. Wells Fargo Bank, N.A. v Krauss, 2015 NY Slip Op 04123, 2nd Dept 5-13-15

 

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