Wilmington Sav. Fund Socy., FSB v. Laurino

Dept 2021]). "Law office failure should not be excused where a default results not from an isolated, inadvertent mistake, but from repeated neglect" (Federal Natl. Mtge. Assn. v Banks, 198 AD3d 1222, 1224 [3d Dept 2021] [internal quotation marks, brackets and citations omitted]).

Here, defendant's motion to vacate the 2019 order is only supported by her own self-serving affidavit asserting that her prior counsel, and the numerous other individuals she retained to represent or assist her in this action and in a related bankruptcy action, failed to notify her of the existence of the summary judgment motion and order. Such "conclusory and unsubstantiated allegations . . . [are] insufficient to amount to a reasonable excuse for [her] default[ ]"

(CitiMortgage, Inc. v Ramlal, 238 AD3d 976, 978 [2d Dept 2025]; see Selene Fin., L.P. v Ng, 218 AD3d 619, 620 [2d Dept 2023]; Wilmington Sav. Fund Socy., FSB v Rodriguez, 197 AD3d at 786; White v Daimler Chrysler Corp., 44 AD3d 651, 651-652 [2d Dept 2007]; see also Wells Fargo Bank, N.A. v Cervini, 84 AD3d 789, 790 [2d Dept 2011]). Defendant offers no support for her belief that the various individuals who she hired to assist with her foreclosure, beyond her first retained counsel, had no knowledge of the 2019 order over the nearly five years that elapsed from entry until the cross- motion to vacate was filed by her current counsel. Thus, we find no abuse of discretion in Supreme Court's determination that her unsupported account "strain[ed] credulity." Further, we do not find that the failure to oppose the summary judgment motion rose beyond mere neglect and amounted to law office failure (see Bank of N.Y. Mellon Trust Co., N.A. v Talukder, 176 AD3d at 774; Bank of N.Y. Mellon v Colucci, 138 AD3d 1047, 1048 [2d Dept 2016]). Lastly, and perhaps most significant, defendant's motion to vacate concerns a nearly five-year-old order, and was made after a referee had already calculated the amount due and the matter is nearly at its conclusion; such facts substantiate the prejudice [*3]that would result to plaintiff in allowing vacatur at this stage of the litigation (see Gootnick v Gootnick,

241 AD3d 1292, 1293 [2d Dept 2025]; compare Ditech Fin., LLC v Connolly, 230 AD3d 647, 649 [2d Dept 2024]; Zoom Tan, Inc. v Monforte, 227 AD3d 1237, 1238 [3d Dept 2024]; Luderowski v Sexton, 152 AD3d 918, 920 [3d Dept 2017]). All told, we find no abuse of discretion in Supreme Court's rejection of defendant's excuse for the delay and, "[g]iven this failure of proof, it is unnecessary to address whether defendant has established a meritorious defense" (U.S. Bank N.A. v Thibault, 248 AD3d 1350, 1352 [3d Dept 2026] [internal quotation marks, brackets and citation omitted]). Further, contrary to defendant's contention, her failure to successfully vacate her default precludes her RPAPL article 13 contentions (see HSBC Bank USA, N.A. v Coxall, 239 AD3d 714, 716-17 [2d Dept 2025]; U.S. Bank N.A. v Goldberger, 211 AD3d 1077, 1078 [2d Dept 2022]; US Bank N.A. v Oliver, 180 AD3d 843, 844 [2d Dept 2020]; Bank of Am., N.A. v Agarwal, 150 AD3d 651, 652 [2d Dept 2017]; HSBC Bank USA, N.A. v Clayton, 146 AD3d 942, 944 [2d Dept 2017], lv denied 29 NY3d 1073 [2017]; PHH Mtge. Corp. v Celestin, 130 AD3d 703, 704 [2d Dept 2015]; see also U.S. Bank N.A. v Thibault, 248 AD3d at 1351-1352).

Turning to defendant's argument that Supreme Court erred in confirming the referee's report, we find no merit to her contentions. "The report of a referee should be confirmed if the findings therein are supported by the record"

(Nationstar Mtge. LLC v O'Brien, 231 AD3d 1392, 1393 [3d Dept 2024] [internal quotation marks, brackets and citations omitted]; see Wilmington Sav. Fund Socy., FSB v Helal, 211 AD3d 991, 993 [2d Dept 2022]). "[T]he referee's findings and recommendations are advisory only; they have no binding effect and the court remains the ultimate arbiter of the dispute as CPLR 4403 expressly authorizes a court not only to reject the report but to make its own findings, to take or retake testimony or to order a new trial or hearing" (Carrington Mtge. Servs., LLC v Fiore, 206 AD3d 1306, 1308 [3d Dept 2022] [internal quotation marks, brackets and citations omitted]). Defendant's argument that the referee relied upon improper evidence to establish her default was properly rejected by Supreme Court, as that issue was resolved as part of the 2019 order granting Chase Bank summary judgment and striking defendant's answer, which defendant has unsuccessfully sought to vacate (see Bank of N.Y. Mellon Trust Co. v Loodus, 160 AD3d 797, 798 [2d Dept 2018]; HSBC Bank USA, N.A. v Simmons, 125 AD3d 930, 932 [2d Dept 2015]; see generally Schantz v O'Sullivan, 302 AD2d 793, 795 [3d Dept 2003]). We also reject defendant's contention that the referee relied upon an inadmissible affidavit authored by Dennis Micek â​​ a supervisor for Carrington Mortgage Services, LLC, Chase Bank's loan servicer â​​ suggesting that he failed to demonstrate that he had adequate authority as attorney-in-fact[*4].^FN2 The limited power of attorney is explicit in granting broad authority to Carrington, as the mortgage servicer, to "execute and acknowledge in writing or by facsimile stamp all documents customarily and reasonably necessary and appropriate" to engage in the duties required for that obligation. Further, Micek explicitly states in his affidavit that he is authorized to provide the information contained therein, which was based on his personal knowledge of the relevant records. Those representations sufficiently established the authority to act as attorney-in-fact and nothing in defendant's submissions contradicts Micek's statements (see Nationstar Mtge. LLC v Vassi, ___ AD3d ___, ___, 258 NYS3d 28, 35-36 [1st Dept 2026]; compare U.S. Bank N.A. v Tesoriero, 204 AD3d 1066, 1068 [2d Dept 2022]). Defendant also incorrectly states that the referee failed to identify the evidence supporting her determination that the property should be sold in one parcel. In this regard, the schedule of documentary evidence appended to the report specifically identifies the contents of the tax search â​​ specifically, that the property consists of a single-family dwelling under a single tax account number â​​ as the basis for that determination (compare Wells Fargo Bank, N.A. v Laronga, 219 AD3d 1559, 1561 [2d Dept 2023]). Having dispensed with the legal arguments raised by defendant and noting her failure to submit any "admissible [evidence] to contest the referee's computations, defendant[ ] failed to reveal error by Supreme Court in confirming the referee's report and awarding a judgment of foreclosure and sale" (Carrington Mtge. Servs., LLC v Fiore, 206 AD3d at 1309; see Wilmington Sav. Fund Socy. FSB v Oppitz, 198 AD3d 1198, 1200 [3d Dept 2021]).

Defendant's remaining arguments, to the extent not explicitly addressed, have been considered and found either without merit or have been otherwise rendered academic by our determinations herein.

Clark, J.P., Ceresia, Powers and Ryba, JJ., concur.