Opinion
03-10-2015
In re RENAISSANCE ECONOMIC DEVELOPMENT CORPORATION, Petitioner–Respondent, v. JIN HUA LIN, etc., Respondent–Appellant.
Law Offices of Victor Tsai, Brooklyn (Victor Tsai of counsel), for appellant. Yuen Roccanova Seltzer & Sverd P.C., New York (Steven Seltzer of counsel), for respondent.
Law Offices of Victor Tsai, Brooklyn (Victor Tsai of counsel), for appellant.
Yuen Roccanova Seltzer & Sverd P.C., New York (Steven Seltzer of counsel), for respondent.
Opinion Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered June 10, 2013, which denied respondent's motion to vacate a default judgment against her and for credit under the homestead exemption, unanimously affirmed, without costs.
The court properly denied vacatur under CPLR 317, where respondent admitted she had actual notice of the petition in time to defend (see Residential Bd. of Mgrs. of 99 Jane St. Condominium v. Rockrose Dev. Corp., 17 A.D.3d 194, 796 N.Y.S.2d 35 [1st Dept.2005] ). The court also correctly declined to vacate under CPLR 5015(a)(3), which allows for vacatur where the judgment was obtained by fraud or misconduct. The fraud referenced in the statute must be “extrinsic fraud,” that is, a fraud on the defaulting party that induces them not to defend the case (Shaw v. Shaw, 97 A.D.2d 403, 403, 467 N.Y.S.2d 231 [2d Dept.1983] ; see Aguirre v. Aguirre, 245 A.D.2d 5, 7, 665 N.Y.S.2d 638 [1st Dept.1997] ). Respondent's supposed confusion over the relief sought in the petition is not a basis for such vacatur and she points to no other extrinsic fraud. Furthermore, while respondent may have had a partial defense to the action or sale under the homestead exemption of CPLR 5206(e), by defaulting and otherwise failing to assert the exemption, she waived any such privilege (see e.g. Matter of
Balanoff v. Niosi, 16 A.D.3d 53, 56, 791 N.Y.S.2d 553 [2d Dept.2005] ).
FRIEDMAN, J.P., SWEENY, ACOSTA, DeGRASSE, GISCHE, JJ., concur.