Opinion
08-30-2017
COMMUNITY WEST BANK, N.A., formerly known as Goleta National Bank, respondent, v. Cheryl STEPHEN, also known as Cheryl Rameau, et al., appellants, et al., defendants.
Berg & David, PLLC, Brooklyn, NY (Abraham David of counsel), for appellants. Zeichner Ellman & Krause LLP, New York, NY (Anna S. Park and Steven S. Rand of counsel), for respondent.
Berg & David, PLLC, Brooklyn, NY (Abraham David of counsel), for appellants.
Zeichner Ellman & Krause LLP, New York, NY (Anna S. Park and Steven S. Rand of counsel), for respondent.
WILLIAM F. MASTRO, J.P., L. PRISCILLA HALL, JEFFREY A. COHEN, and ANGELA G. IANNACCI, JJ.
Appeal from an order of the Supreme Court, Kings County (Sylvia G. Ash, J.), dated February 23, 2015. The order, insofar as appealed from, denied the motion of the appellants Cheryl Stephen, also known as Cheryl Rameau, and Monica Joseph pursuant to CPLR 5015(a)(3), inter alia, to vacate a judgment of foreclosure and sale.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The defendants Cheryl Stephen, also known as Cheryl Rameau, and Monica Joseph (hereinafter together the movants), moved pursuant to CPLR 5015(a)(3) to vacate a judgment of foreclosure and sale that was entered upon their failure to answer the complaint. The movants contended that in calculating the indebtedness owed under the mortgage, the plaintiff misrepresented to the Supreme Court that they were required to pay interest in addition to the principal amount of $120,000. The court denied the motion. We affirm.
The movants failed to demonstrate the existence of fraud, misrepresentation, or misconduct on the part of the plaintiff and, therefore, they were not entitled to vacatur of the judgment of foreclosure and sale pursuant to CPLR 5015(a)(3) (see Diaz v. Wyckoff Hgts. Med. Ctr., 148 A.D.3d 778, 779, 49 N.Y.S.3d 149 ; Porter v. Porter, 137 A.D.3d 992, 993, 27 N.Y.S.3d 261 ; Citimortgage, Inc. v. Brown, 111 A.D.3d 593, 594, 974 N.Y.S.2d 272 ; U.S. Bank N.A. v. Allen, 102 A.D.3d 955, 955, 958 N.Y.S.2d 737 ; U.S. Bank N.A. v. Tate, 102 A.D.3d 859, 860, 958 N.Y.S.2d 722 ; Citicorp Vendor Fin., Inc. v. Island Garden Basketball, Inc., 27 A.D.3d 608, 609, 810 N.Y.S.2d 673 ). In any event, the Supreme Court did not err in determining that the movants unreasonably delayed in seeking relief under that provision (see Sealey v. Westend Gardens Hous. Dev. Fund Co., Inc., 97 A.D.3d 653, 654, 949 N.Y.S.2d 89 ; Bank of N.Y. v. Stradford, 55 A.D.3d 765, 765, 869 N.Y.S.2d 554 ). Accordingly, the court properly denied the movants' motion pursuant to CPLR 5015(a)(3) to vacate the judgment of foreclosure and sale.
To the extent the plaintiff contends that the Supreme Court erred in denying its cross motion to impose a sanction upon the movants and their attorney, that contention is not properly before this Court, as the plaintiff did not appeal from the order (see CPLR 5515 ; Lewin v. Levine, 146 A.D.3d 768, 770, 44 N.Y.S.3d 540 ; Matter of Sell v. New York City Dept. of Educ., 135 A.D.3d 594, 596, 24 N.Y.S.3d 41 ). Moreover, we decline the plaintiff's request that this Court impose a sanction upon the movants for pursuing an allegedly frivolous appeal (see 22 NYCRR 130–1.1 [a] ).
The parties' remaining contentions either are without merit or need not be addressed in light of our determination.