U.S. Bank Trust N.A. v. Fowkes

Full text

U.S. Bank Trust N.A. v Fowkes 2025 NY Slip Op 34093(U) November 6, 2025 Supreme Court, Suffolk County Docket Number: Index No. 621895/2024 Judge: S. Betsy Heckman Torres Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.

FILED: SUFFOLK COUNTY CLERK 11/06/2025 02:29 PM INDEX NO. 621895/2024 NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 11/06/2025

Short Form Order

SUPREME COURT- STATE OF NEW YORK IAS PART 18 - SUFFOLK COUNTY

PRESENT: INDEX NO.: 621895/2024 HON. S. BETSY HECKMAN TORRES, J.S.C. MOTION DA TE: 08/12/2025 ----------------------------------------------------------------X MOT. SEQ. NO.: 002 MD U.S. BANK TRUST NATIONAL ASSOCIATION, AS TRUSTEE OF IGLOO SERIES V TRUST, PLAINTIFF'S ATTORNEY: Friedman Vartolo LLP Plaintift~ 1325 Franklin Avenue, Suite 160 Garden City, New York 11530 -against- DEFENDANT'S ATTORNEY: WILLIAM J. FOWKES III; SOLO GROUP LLC; Rosenberg & Estis, P.C. FORS WEST CAPITAL, LLC; "JOHN DOE," AND 733 3rd Avenue "JANE DOE" said names being fictitious, it being the New York, New York 10017 intention of plaintiff to designate any and all occupants of premises being foreclosed herein,

Defendants. ----------------------------------------------------------------X Upon the following electronically filed documents listed on NYSCEF as #s 31-37, read on this motion to compel Plaintiff to accept a late answer (#002) by Defendant, after due consideration, it is,

ORDERED that this motion (#002) by defendant WILLIAM J. FOWKES III seeking an order, pursuant to CPLR § 3012(d), compelling plaintiff to accept defendant's verified answer with affirmative defenses and counterclaims filed on May 20, 2025, is denied in its entirety; and it is further ORDERED that plaintiff is directed to proceed with filing a motion for the appointment of a referee to compute the sums due and owing within 45 days of entry of the within order; and it is further

ORDERED that plaintiff is directed to file a notice of entry within five days of receipt of this Order pursuant to 22 NYCRR § 202.5-b(h)(2).

This is an action to foreclose a mortgage on a residential property located in East Hampton, New York. On March 3, 2003, defendant borrowed $265,000.00 from plaintiffs predecessor-in-interest and executed a promissory note and a mortgage that was recorded in the Office of the Suffolk County Clerk on March 11, 2003. The loan was thereafter modified three separate times through Loan Modification Agreements executed on April 2, 2014, December 29, 2017, and September 8, 2020. Since January 1, 2024, defendant has not made any payments on the monthly installments due and owing. On April 8, 2024, plaintiff sent defendant a notice of default and 90-day notice pursuant to RP APL § 1304. Subsequently, plaintiff commenced this

Page 1 of 3

FILED: SUFFOLK COUNTY CLERK 11/06/2025 02:29 PM INDEX NO. 621895/2024 NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 11/06/2025

Footnotes

[1] of 6 [* 1] action by filing a Summons and Complaint on September 3, 2024. The defendant appeared at the initial settlement conference held on February 11, 2025, but failed to appear at the continued settlement conference scheduled for April 23, 2025. Approximately one month later, defendant, through counsel, filed an answer with affirmative defenses and counterclaims on May 20, 2025, which the plaintiff rejected as untimely. Thereafter, on May 30, 2025, defendant, through counsel, filed the instant motion (#002) seeking to compel the plaintiff to accept his answer pursuant to CPLR § 3012(d). Plaintiff opposed the motion. By his instant motion (#002), defendant asks this Court to vacate his default in answering and deem his previously filed answer timely interposed. To vacate a default in answering the complaint and to compel plaintiff to accept service of an untimely answer, a defendant must establish both a reasonable excuse for his failure to answer and the existence of a potentially meritorious defense to the action (see CPLR § § 3012[d]; Aurora Loan Services, LLC v A1ovtady,

[165] AD3d I 025, 1027, 87 NYS3d 114, 116 [2d Dept 2018], citing Mannino Dev., Inc v Linares, 117 AD3d 995,995,986 NYS2d 578, 579 [2d Dept 2014]; HSBC Bank USA, N.A. v Lajazan, 115 AD3d 647,648,983 NYS2d 32, 32 [2d Dept 2014]; Maspeth Fed. Sav. & Loan Assn. v McGown, 77 AD3d 889,890,909 NYS2d 403,403 [2d Dept 2010]). The determination of what constitutes a reasonable excuse lies within the sound discretion of the Court (see Rosario v Naranjo, 165 AD3d 860, 861, 84 NYS3d 556,557 [2d Dept 2018], citing Harcztark v Drive Variety, Inc., 21 AD3d 876, 876-77, 800NYS2d 613,614 [2d Dept2005]; see also Gomezv Gomez-Trimarchi, 137 AD3d 972,973, 27 NYS3d 229,231 [2d Dept 2016]). The Court finds that the defendant's submission fails to demonstrate his entitlement for leave to file a late answer. In his affidavit, defendant admits that he "was still cognizant of [his] obligation to defend this lawsuit," yet he did not answer within 30 days of the initial foreclosure settlement conference, he did not appear personally on the continued court date of April 23, 2025, and he did not retain counsel until after that date and after his time and extension of time to answer had expired. Although defendant maintains that he retained counsel within a matter of days of his missed April 23, 2025 appearance, and maintains that counsel filed an answer within a matter of days of being retained, no answer was filed until nearly a month later, on May 20, 2025 - over three months after the initial settlement conference date and over eight months after the filing of the summons and complaint. Defendant's counsel argues that the answer was not exceedingly late and that the granting of the defendant's application does not prejudice the plaintiff. However, the defendant demonstrates no reasonable excuse for failing to answer timely despite having multiple opportunities to do so. The defendant was initially advised of the requirement to file an answer with the summons, dated September 3, 2024, served in this action, which warned the defendant that he was "IN DANGER OF LOSING" his home and they he "MUST RESPOND BY SERVING A COPY OF THE ANSWER" (see HSBC Bank USA. lv'atl. Assn. v Rotimis, 121 AD3d 855,856,995 NYS2d 81, 82 [2d Dept 2014], citing RPAPL § 120, H.SBC Bank USA, Natl. Assn. v Lafazan, 115 AD3d at 648,983 NYS2d at 33 [2d Dept 2014], Chase Home Fin., LLC v Minou, 115 AD3d 634, 634-45, 981 NYS2d 757, 758 [2d Dept 2014]). The defendant further failed to utilize the built in extension of time and an additional opportunity to file an answer "within thirty days of the initial appearance at the settlement conference" held on February 11, 2025, pursuant to CPLR § 3408(1)-(m). Defendant's contentions that his failure Page 2 of 3 3 of 6 [* 2] to an wer timely was both a re ult of a mi understanding and hi mother falling ill ar insuffic ient to amount to a reasonable excuse and it does not address his failure to answer initially, nor his failure to answer within the additional thirty days granted from February I l 2025 pur uant to PLR 3408(1)-(m). The Court thus determines that the defendant has failed to demonstrate a reasonabl e ·cuse (see U . Bank, atl. A n. v mith l 32 AD3d 848 19 Y 3d 62 [2d Dept 2015]: omrnunity W Bank. .A. v tephen 127 AD2d 1008 9 Y 3d 275 [2d D pt 2015]' H. B Bank U. 'A v Dammomi 59 AD3d 679, 875 Y 2d 490 [2d Dept 2009]). In as much a th d fendant failed to ad ance a reasonable excus in support of hi application to acate his default in answering and for lea e to extend his time to answer under PLR § 3012(d it is unnecessary to address whether the defendant has demon trated a pot ntially m ritorious defense (see BA Home Loan er ., LP v Readon 132 AD3d 790 18 Y 3d 664 [2d Dept 2015]; ilimortgage, In . v Ko walski 130 D3d 558, 13 Y 3d 468 [2d Dept 2015]' Emigrant Bank v Wi 'eman, 127 AD3d 1013, 6 Y 3d 670 [2d Dept 2015 ]). For the foregoing reason the motion b the d fondant to compel the plaintiff to ac pt his ans r is d ni din i.ts entirety. The plaintiff is hereby directed to proceed wi.th filing a motion for the appointment of a referee to compute the urns du and owing within 45 day of entry of the ithin order. This constitute the Decision and Order of the Court. DAT D: ovember 6, 2025 Page 3 of 3 5 of 6 [* 3]