Opinion
2015–06192 Index No. 10035/08
12-26-2018
P.B. #7, LLC, Respondent, v. 231 FOURTH AVENUE LYCEUM, LLC, et al., Defendants, Eric Richmond, Appellant.
Eric Richmond, Brooklyn, NY, appellant pro se. Stim & Warmuth, P.C., Farmingville, N.Y. (Glenn P. Warmuth of counsel), for respondent.
Eric Richmond, Brooklyn, NY, appellant pro se.
Stim & Warmuth, P.C., Farmingville, N.Y. (Glenn P. Warmuth of counsel), for respondent.
REINALDO E. RIVERA, J.P., JOHN M. LEVENTHAL, SYLVIA O. HINDS–RADIX, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
ORDERED that the order is affirmed insofar as appealed from, with costs.
In this mortgage foreclosure action, Eric Richmond (hereinafter the defendant) moved, inter alia, pursuant to CPLR 5015(a)(3), in effect, to vacate a judgment of foreclosure and sale dated September 28, 2012, entered upon his default, and to set aside the foreclosure sale of the subject property. The Supreme Court denied the motion, and the defendant appeals.
The defendant failed to move for relief pursuant to CPLR 5015(a)(3) within a reasonable time after entry of the judgment of foreclosure and sale (see Wells Fargo Bank Minn., N.A. v. Coletta, 153 A.D.3d 756, 756, 59 N.Y.S.3d 788 ; New Century Mtge. Corp. v. Chimmiri, 146 A.D.3d 893, 45 N.Y.S.3d 209 ; LaSalle Bank N.A. v. Oberstein, 146 A.D.3d 945, 45 N.Y.S.3d 538 ). In any event, where, as here, a defendant seeks to vacate a default pursuant to CPLR 5015(a)(3) based upon a claim of intrinsic fraud, he or she must establish a reasonable excuse for the default and a potentially meritorious defense to the action (see Deutsche Bank Nat. Trust Co. v. Karlis, 138 A.D.3d 915, 916, 30 N.Y.S.3d 228 ; New Century Mtge. Corp. v. Corriette, 117 A.D.3d 1011, 1012, 986 N.Y.S.2d 560 ). Here, the defendant failed to offer any excuse for his default. Accordingly, the Supreme Court properly denied those branches of his motion which were pursuant to CPLR 5015(a)(3), in effect, to vacate the judgment of foreclosure and sale and to set aside the foreclosure sale of the subject property.
RIVERA, J.P., LEVENTHAL, HINDS–RADIX and BRATHWAITE NELSON, JJ., concur.