By Rivera, J.P.; Austin, Iannacci, Christopher, JJ. CIT BANK, N.A., res, v. HARENDRA SINGH, ET AL., app, ET AL., def — (Index No. 6034/16) Binakis Law P.C., Woodside, NY (Patrick Binakis of counsel), for appellants. Gross Polowy, LLC, Westbury, NY (Stephen J. Vargas of counsel), for respondent. In an action to foreclose a mortgage, the defendants Harendra Singh and Ruby Singh appeal from an order of the Supreme Court, Nassau County (Thomas A. Adams, J.), entered December 5, 2018. The order denied those defendants’ motion, inter alia, pursuant to CPLR 5015(a)(1) to vacate an order and judgment of foreclosure and sale of the same court entered January 10, 2018. ORDERED that the order is affirmed, with costs. In November 2007, the defendants Harendra Singh and Ruby Singh (hereinafter together the defendants) executed a note in the sum of $2,755,489 which was secured by a mortgage on residential property located in Nassau County. In August 2016, the plaintiff commenced this action against the defendants, among others, to foreclose the mortgage, alleging that the defendants defaulted in their monthly payment obligations due on the note beginning October 1, 2014. After the defendants interposed an answer, the plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendants, to strike their answer, and for an order of reference. The defendants failed to oppose the motion. In an order dated July 20, 2017, the Supreme Court granted the motion and referred the matter to a referee to compute the amount due to the plaintiff. The plaintiff then moved, among other things, for an order confirming the referee’s report and a judgment of foreclosure and sale. The defendants also failed to oppose that motion. The court issued an order and judgment of foreclosure and sale, entered January 10, 2018, inter alia, confirming the referee’s report and directing the foreclosure sale of the subject property. In August 2018, the defendants moved, inter alia, pursuant to CPLR 5015(a)(1) to vacate the order and judgment of foreclosure and sale. By order entered December 5, 2018, the Supreme Court denied this motion, and the defendants appeal. “[A] defendant seeking relief under [CPLR 5015(a)(1)] must demonstrate a reasonable excuse for the default and a potentially meritorious defense” (Nationstar Mtge., LLC v. Brignol, 181 AD3d 881, 882). Here, assuming that the defendants established a reasonable excuse for their failure to oppose the plaintiff’s motions (see e.g. Whitmore v. JP Morgan Chase, N.A., 181 AD3d 941, 942; Rekhtman v. Clarendon Holding Co., Inc. 165 AD3d 856, 857), they did not demonstrate a potentially meritorious defense to the foreclosure action (see Deutsche Bank Natl. Trust Co. v. Ramirez, 117 AD3d 674, 676). “CPLR 3408 mandates settlement conferences in residential foreclosure actions, and requires that the parties at a settlement conference negotiate in good faith” (Capital One, N.A. v. McComb, 180 AD3d 743, 744 [citation omitted]). “However, it is obvious that the parties cannot be forced to reach an agreement, CPLR 3408 does not purport to require them to, and the courts may not endeavor to force an agreement upon the parties” (Wells Fargo Bank, N.A. v. Meyers, 108 AD3d 9, 20). “[W]hether a party failed to negotiate in ‘good faith’ within the meaning of CPLR 3408(f) should be determined by considering whether the totality of the circumstances demonstrates that the party’s conduct did not constitute a meaningful effort at reaching a resolution” (US Bank N.A. v. Sarmiento, 121 AD3d 187, 203). Contrary to the defendants’ contentions, the record does not demonstrate that the plaintiff failed to negotiate in good faith. The parties participated in a settlement conference pursuant to CPLR 3408 on December 7, 2016, where the defendants represented, inter alia, that they had no income and that Harendra Singh was subject to a criminal conviction. Thus, in light of the totality of the circumstances, the defendants failed to establish that the plaintiff’s refusal to grant the defendants’ application for a loan modification was in bad faith, warranting a hearing (see Deutsche Bank Natl. Trust Co. v. Twersky, 135 AD3d 895, 896; American Airlines Fed. Credit Union v. Mohamed, 117 AD3d 974, 975). Accordingly, the Supreme Court properly denied the defendants’ motion, inter alia, pursuant to CPLR 5015(a)(1) to vacate the order and judgment of foreclosure and sale. The defendants’ remaining contentions are improperly raised for the first time on appeal. RIVERA, J.P., AUSTIN, IANNACCI and CHRISTOPHER, JJ., concur.
By Rivera, J.P.; Chambers, Miller, Nelson, JJ. NATIONSTAR MORTGAGE, LLC, res, v. CELSO PAGANINI, app, ET AL., def — (Index No. 52059/16) Clair & Gjertsen, White Plains, NY (Lancelot E. Colquitt of counsel), for appellant. McCalla Raymer Leibert Pierce, LLC, New York, NY (Sean Howland of counsel), for respondent. In an action to foreclose a mortgage, the defendant Celso Paganini appeals from (1) an order of the Supreme Court, Westchester County (Sam D. Walker, J.), dated June 30, 2017, and (2) an order of the same court entered January 30, 2018. The order dated June 30, 2017, insofar as appealed from, denied that branch of that defendant’s motion which was pursuant to CPLR 5015 to vacate so much of an order of the same court dated April 6, 2012, as determined that the plaintiff had standing to maintain this action. The order entered January 30, 2018, insofar as appealed from, after a framed-issue hearing to determine whether the plaintiff complied with the requirements of RPAPL 1304, in effect, granted those branches of the plaintiff’s motion which were for summary judgment on the complaint insofar as asserted against that defendant and for an order of reference. ORDERED that the appeals are dismissed, without costs or disbursements. The appeals from the orders must be dismissed because the right of direct appeal therefrom terminated with the entry of an order and judgment of foreclosure and sale in the action (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from the orders are brought up for review and have been considered on the appeal from the order and judgment of foreclosure and sale (Nationstar Mtge., LLC v. Paganini, ___ AD3d ___ [Appellate Division Docket No. 2019-02899; decided herewith]; see CPLR 5501[a][1]; Matter of Aho, 39 NY2d at 248). RIVERA, J.P., CHAMBERS, MILLER and BRATHWAITE NELSON, JJ., concur. NATIONSTAR MORTGAGE, LLC, res, v. CELSO PAGANINI, app, ET AL., def — (Index No. 52059/16) Motion by the respondent, inter alia, to dismiss the appeals from an order dated June 30, 2017, and an order entered January 30, 2018, inter alia, on the ground that no appeal lies from an order denying leave to reargue. By decision and order on motion of this Court dated December 11, 2018, that branch of the motion which is to dismiss the appeals was held in abeyance and referred to the panel of Justices hearing the appeals for determination upon the argument or submission thereof. Upon the papers filed in support of the motion, and the papers filed in opposition thereto, and upon the argument of the appeals, it is ORDERED that the branch of the motion which is to dismiss the appeals on the ground that no appeal lies from an order denying leave to reargue is denied. RIVERA, J.P., CHAMBERS, MILLER and BRATHWAITE NELSON, JJ., concur.
