HSBC Bank USA, Nat'l Ass'n v. Miller, 121 A.D.3d 1044 (N.Y. App. Div. 2014). · Go Syfert
HSBC Bank USA, Nat'l Ass'n v. Miller, 121 A.D.3d 1044 (N.Y. App. Div. 2014). Cases Citing This Book View Copy Cite
33 citation events (33 in the last 25 years) across 3 distinct courts.
Strongest positive: Wells Fargo Bank, N.A. v. Iqbal (nyappdiv, 2026-01-27)
Treatment trajectory · 2015 → 2026 · click a year to view as-of
2015 2020 2026
Top citers, strongest first. 11 distinct citers. How cited ↗
discussed Cited as authority (rule) Wells Fargo Bank, N.A. v. Iqbal
N.Y. App. Div. · 2026 · confidence medium
Realty Corp. , 180 AD2d 544, 545 [1st Dept 1992], lv dismissed 80 NY2d 826 [1992]), defendant's delay was nonetheless not relatively brief so as to warrant vacatur in the interest of substantial justice ( see CitiMortgage, Inc. v Maldonado , 171 AD3d 1007 , 1008 [2d Dept 2019]; HSBC Bank USA, N.A. v Miller , 121 AD3d 1044, 1046 [2d Dept 2014]).
discussed Cited as authority (rule) McNaughton v. 5 W. 14 Owners Corp.
N.Y. App. Div. · 2025 · confidence medium
Although Supreme Court has the inherent authority to vacate a judgment in the interest of justice even after the statutory one-year period has lapsed, the movant must provide a reasonable excuse for his delay in moving to vacate ( see HSBC Bank USA, N.A. v Miller, 121 AD3d 1044, 1045-1046 [2d Dept 2014]; see also Barnett, 202 AD3d at 652 ).
discussed Cited as authority (rule) LaSalle Bank National Ass'n v. Calle
N.Y. App. Div. · 2017 · confidence medium
Since the defendant failed to establish a reasonable excuse for his default in appearing or answering the complaint, it is unnecessary to consider whether he established the existence of a potentially meritorious defense (see Nationstar Mtge., LLC v McLean, 140 AD3d 1131, 1132 [2016]; Wells Fargo Bank, NA v Besemer, 131 AD3d 1047, 1049 [2015]; HSBC Bank USA, N.A. v Miller, 121 AD3d 1044, 1046 [2014]; Deutsche Bank Natl.
discussed Cited as authority (rule) Diaz Ex Rel. Belen v. Wyckoff Heights Medical Center
N.Y. App. Div. · 2017 · confidence medium
While the Supreme Court has the inherent authority to vacate a judgment in the interest of justice even after the statutory one-year period has expired, here, the defendants failed to demonstrate a reasonable excuse for their delay in moving to vacate the judgment pursuant to CPLR 5015 (a) (1) (see Ashley v Ashley, 139 AD3d at 651 ; HSBC Bank USA, N.A. v Miller, 121 AD3d 1044, 1045-1046 [2014]; Matter of Weintrob v Weintrob, 87 AD3d at 750 ).
discussed Cited as authority (rule) Matter of Annata M. (Clinton B.)
N.Y. App. Div. · 2016 · confidence medium
When, as here, a party seeking to vacate an order entered upon default seeks a discretionary vacatur and raises a jurisdictional objection, the jurisdictional question must be resolved before determining whether it is appropriate to grant a discretionary vacatur (see Wachovia Bank, N.A. v Greenberg, 138 AD3d 984 [2016]; Vapnersh v Tabak, 131 AD3d 472 [2015]; HSBC Bank USA, N.A. v Miller, 121 AD3d 1044, 1045 [2014]).
discussed Cited as authority (rule) Ashley v. Ashley
N.Y. App. Div. · 2016 · confidence medium
Although the Supreme Court has the inherent authority to vacate a judgment in the interest of justice even after the statutory one-year period has lapsed (see Goldenberg v Goldenberg, 123 AD3d 761, 761-762 [2014]; HSBC Bank USA, N.A. v Miller, 121 AD3d 1044, 1045-1046 [2014]), here, the Supreme Court providently exercised its discretion in denying that branch of the defendant’s motion which was to vacate the judgment.
discussed Cited as authority (rule) Vapnersh v. Tabak
N.Y. App. Div. · 2015 · confidence medium
When a party seeking to vacate an order entered upon default seeks both a discretionary vacatur pursuant to CPLR 5015 (a) (1) and raises a jurisdictional objection under CPLR 5015 (a) (4), the jurisdictional question must be resolved before determining whether it is appropriate to grant discretionary vacatur of the default under CPLR 5015 (a) (1) (see HSBC Bank USA, N.A. v Miller, 121 AD3d 1044, 1045 [2014]; Matter of Anna M. [Adam W.M. — Benjamin L.M.], 93 AD3d 671, 672-673 [2012]; Roberts v Anka, 45 AD3d 752, 753 [2007]). “ ‘The death of a party divests the court of jurisdiction and st…
discussed Cited "see" Deutsche Bank Natl. Trust Co. v. Hossain
N.Y. App. Div. · 2020 · signal: see · confidence high
When a defendant seeking to vacate a default raises both a jurisdictional objection pursuant to CPLR 5015(a)(4) and seeks a discretionary vacatur pursuant to CPLR 5015(a)(1), "the [*2]court is required to resolve the jurisdictional question before determining whether it is appropriate to grant a discretionary vacatur of the default under CPLR 5015(a)(1)" ( Canelas v Flores , 112 AD3d 871, 871 ; see HSBC Bank USA, N.A. v Miller , 121 AD3d 1044, 1045 ).
discussed Cited "see" Deutsche Bank National Trust Co. v. Hazzard Adolph
N.Y. App. Div. · 2016 · signal: see · confidence high
Darling-Cummings, as trustee of the Darling-Cummings Gift Trust (hereinafter the defendant), was not entitled to vacatur of an order of reference or a judgment of foreclosure and sale pursuant to CPLR 5015 (a) (3), since she failed to demonstrate that the order or the judgment were procured by “fraud, misrepresentation, or other misconduct of an adverse party” (Empire State Conglomerates v Mahbur, 105 AD3d 898, 899 [2013]; see HSBC Bank USA, N.A. v Miller, 121 AD3d 1044 [2014]; Bank of N.Y. v Stradford, 55 AD3d 765, 765 [2008]).
discussed Cited "see" Community West Bank, N.A. v. Stephen
N.Y. App. Div. · 2015 · signal: see · confidence high
“When a defendant seeking to vacate a default judgment raises a jurisdictional objection pursuant to CPLR 5015 (a) (4), the court is required to resolve the jurisdictional question before determining whether it is appropriate to grant a discretionary vacatur of the default under CPLR 5015 (a) (1)” (Canelas v Flores, 112 AD3d 871, 871 [2013]; see HSBC Bank USA, N.A. v Miller, 121 AD3d 1044, 1045 [2014]).
discussed Cited "see" ETrade Bank v. Vasquez
N.Y. App. Div. · 2015 · signal: see · confidence high
When a defendant seeking to vacate a default judgment raises both a jurisdictional objection pursuant to CPLR 5015 (a) (4) and seeks a discretionary vacatur pursuant to CPLR 5015 (a) (1), “the court is required to resolve the jurisdictional question before determining whether it is appropriate to grant *934 a discretionary vacatur of the default under CPLR 5015 (a) (1)” (Canelas v Flores, 112 AD3d 871, 871 [2013]; see HSBC Bank USA, N.A. v Miller, 121 AD3d 1044, 1045 [2014]; Roberts v Anka, 45 AD3d 752, 753 [2007]).
Retrieving the full opinion text from the archive…
HSBC Bank USA, National Association, as Trustee Under Pooling and Servicing Agreement Dated as of April 1, 2007, SG Mortgage Securities Trust 2007-NC1 Asset-Backed Certificates, Series 2007-NC1, Appellant,
v.
Kurtis Miller Et Al., Defendants, and Antonia Dawson Et Al., Respondents
Index No. 286/08.
Appellate Division of the Supreme Court of the State of New York.
Oct 29, 2014.
121 A.D.3d 1044
Balkin, Chambers, Miller, Hinds-Radix.
Cited by 26 opinions  |  Published

In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Kings County (Solomon, J.), dated November 2, 2012, which granted those branches of the motion of the defendant Sewajo Dawson which were, in effect, pursuant to CPLR 5015 (a) (1) and (4) to vacate so much of a judgment of foreclosure and sale as was entered against him upon his failure to appear or answer the complaint and those branches of the separate motion of the defendant Antonia Dawson which were pursuant to CPLR 5015 (a) (3) to vacate so much of the same judgment of foreclosure and sale as was[*1045] entered against her upon her failure to answer the complaint and pursuant to CPLR 602 (a) to consolidate this action with an action entitled Dawson v Nora, pending in the Supreme Court, Kings County, under index No. 21496/07.

Ordered that the order is reversed, on the law and the facts, with one bill of costs payable to the plaintiff by the defendants Antonia Dawson and Sewajo Dawson, those branches of the motion of the defendant Sewajo Dawson which were, in effect, pursuant to CPLR 5015 (a) (1) and (4) to vacate so much of the judgment of foreclosure and sale as was entered against him upon his failure to appear or answer the complaint are denied, that branch of the separate motion of the defendant Antonia Dawson which was pursuant to CPLR 5015 (a) (3) to vacate so much of the judgment of foreclosure and sale as was entered against her upon her failure to answer the complaint is denied, that branch of the separate motion of the defendant Antonia Dawson which was pursuant to CPLR 602 (a) to consolidate this action with the action entitled Dawson v Nora, pending in the Supreme Court, Kings County, under index No. 21496/07, is denied as academic, and the judgment of foreclosure and sale is reinstated.

When a defendant seeking to vacate a default judgment raises both a jurisdictional objection pursuant to CPLR 5015 (a) (4) and seeks a discretionary vacatur pursuant to CPLR 5015 (a) (1), “the court is required to resolve the jurisdictional question before determining whether it is appropriate to grant a discretionary vacatur of the default under CPLR 5015 (a) (1)” (Canelas v Flores, 112 AD3d 871, 871 [2013]; see Roberts v Anka, 45 AD3d 752 [2007]). Here, the defendant Sewajo Dawson (hereinafter Sewajo) failed to allege specific facts to rebut the statements in the affidavit of the plaintiffs process server and, thus, did not rebut the plaintiffs prima facie showing that he was validly served with process pursuant to CPLR 308 (2) (see Bank of N.Y. v Samuels, 107 AD3d 653, 653-654 [2013]). Therefore, the Supreme Court should have denied that branch of Sewajo’s motion which was pursuant to CPLR 5015 (a) (4) to vacate so much of the judgment of foreclosure and sale as was entered against him upon his failure to appear or answer the complaint.

The Supreme Court also should have denied that branch Sewajo’s motion which was pursuant to CPLR 5015 (a) (1) to vacate so much of the judgment of foreclosure and sale as was entered against him. This branch of Sewajo’s motion was made more than one year after service upon him of a copy of the judgment, with notice of its entry (see CPLR 5015 [a]). While the Supreme Court has the inherent authority to vacate a judgment[*1046] in the interest of justice even after the statutory one-year period has lapsed, here, Sewajo failed to provide a reasonable excuse for his delay in moving to vacate the judgment pursuant to CPLR 5015 (a) (1) (see Matter of Weintrob v Weintrob, 87 AD3d 749, 750 [2011]; Santiago v Honcrat, 79 AD3d 847, 848 [2010]; State of New York v Kama, 267 AD2d 225 [1999]). In any event, Sewajo failed to establish a reasonable excuse for his default in failing to appear or answer the complaint, since the only excuse he offered was that he was not served with process (see Bank of N.Y. v Samuels, 107 AD3d at 654; Reich v Redley, 96 AD3d 1038, 1039 [2012]). In light of the foregoing, we need not address whether Sewajo established the existence of a potentially meritorious defense (see Reich v Redley, 96 AD3d at 1039).

That branch of the separate motion of the defendant Antonia Dawson (hereinafter Antonia) which was pursuant to CPLR 5015 (a) (3) to vacate so much of the judgment of foreclosure and sale as was entered against her upon her failure to answer the complaint should have been denied, as she did not make the motion within a reasonable time (see Empire State Conglomerates v Mahbur, 105 AD3d 898, 899 [2013]). In any event, Antonia failed to establish that the judgment of foreclosure and sale was procured by fraud, misrepresentation, or other misconduct (see Tribeca Lending Corp. v Crawford, 79 AD3d 1018, 1020 [2010]).

In light of the foregoing, the issue of whether this action should have been consolidated with an action entitled Dawson v Nora, pending in the Supreme Court, Kings County, under index No. 21496/07, has been rendered academic.

Balkin, J.P., Chambers, Miller and Hinds-Radix, JJ., concur.