Friedman Vartolo LLP obtained a novel, lender-friendly decision that denied a mortgagor the right to interpose an answer pursuant to CPLR 3408(m) despite attending the first settlement conference. 

The Nassau County Supreme Court ruled that a defendant, not residing at the to-be foreclosed-upon property, could not extend the time to answer by attending a CPLR 3408 mandatory settlement conference.  However, pursuant to CPLR 3408(m), a defendant who appears at a settlement conference but fails to file a timely answer shall be presumed to have a reasonable excuse for the default and be permitted to serve and file an answer. The court adopted the Plaintiff’s argument that such a right is only available to “residents of the subject property to be foreclosed.” The defendant admitted she did not reside at the mortgaged premises. 

Essentially, the defendant in this case presented no alternative excuse for the failure to timely answer the complaint other than seeking the protections afforded to a resident of the mortgaged premises under CPLR 3408(m). As a result of the default, any potentially meritorious defense to the foreclosure action could not be considered.

-Zachary Gold, Esq., Friedman Vartolo Partner