Chatsworth Assets, Inc. v. 405 W. 45th St., Inc.

—Order and judgment (one paper), Supreme Court, New York County (Karla Moskowitz, J.), entered May 1, 1998, awarding plaintiff foreclosure and sale upon an indebtedness of $1,694,246 plus interest, and bringing up for review an order, same court and Justice, entered on or about December 22, 1997, which, in a foreclosure action, granted plaintiff’s motion for a default judgment as against defendant fee owner and for summary judgment as against defendant sponsor, and referred the matter to a Referee to compute, and order, same court and Justice, entered November 10, 1998, which, insofar as appealed from, denied defendant fee owner’s motion to vacate the default judgment entered against it, unanimously affirmed, without costs. The motion court properly held defendant fee owner in default for failure to answer plaintiff’s amended complaint and properly refused to vacate the default. Defendant never prepared a proposed amended answer in the over five months that plaintiffs motion for a default judgment was pending, and its excuses do not, in fact, address this circumstance. It is thus apparent that defendant’s purpose was not to preserve its rights but rather to delay (compare, Lehifa Trading Co. v Russo Sec., 205 AD2d 738). In any event, we have reviewed all of defendant fee owner’s proposed defenses, which encompass the defenses jointly urged on behalf of defendant sponsor, including that the underlying mortgage was procured by fraud, that the rate of interest was excessive, that necessary parties were not added, that plaintiff was unable to produce the subject notes, and that the Referee should have conducted a hearing, and find them to be without merit. Concur — Nardelli, J. P., Tom, Lerner, Mazzarelli and Friedman, JJ.