Opinion
2018–00771 Index No. 22267/07
12-22-2021
U.S. BANK NATIONAL ASSOCIATION, etc., respondent, v. Jairzinho MERZIUS, appellant, et al., defendants.
Jairzinho Merzius, Brooklyn, NY, appellant pro se. Robertson, Anschutz, Schneid, Crane & Partners, PLLC, Westbury, NY (Joseph F. Battista and Leah Lenz of counsel), for respondent.
Jairzinho Merzius, Brooklyn, NY, appellant pro se.
Robertson, Anschutz, Schneid, Crane & Partners, PLLC, Westbury, NY (Joseph F. Battista and Leah Lenz of counsel), for respondent.
REINALDO E. RIVERA, J.P., ROBERT J. MILLER, LARA J. GENOVESI, WILLIAM G. FORD, JJ.
DECISION & ORDER
In an action to foreclose a mortgage, the defendant Jairzinho Merzius appeals from an order of the Supreme Court, Kings County (Noach Dear, J.), dated September 27, 2017. The order denied that defendant's motion to vacate a judgment of foreclosure and sale of the same court entered March 3, 2016.
ORDERED that the order is affirmed, with costs.
A judgment of foreclosure and sale was entered in this action on March 3, 2016, upon the default of the mortgagor, the defendant Jairzinho Merzius. Thereafter Merzius moved to vacate the judgment of foreclosure and sale, arguing that the plaintiff lacked standing, and that the judgment was procured by fraud. The Supreme Court denied the motion, and Merzius appeals.
Merzius's allegations of fraud constitute claims of intrinsic fraud, which may only serve as a basis for vacatur of a judgment where the movant establishes the existence of a reasonable excuse for the default and a meritorious defense to the action (see Bank of N.Y. Mellon Trust Co., N.A. v. Ross, 170 A.D.3d 931, 932, 94 N.Y.S.3d 862 ; U.S. Bank, N.A. v. Peters, 127 A.D.3d 742, 742–743, 9 N.Y.S.3d 58 ). Here, Merzius has not proffered any excuse for defaulting in the action, and as such, it is unnecessary to determine whether he presented a potentially meritorious defense to the action (see Green Tree Servicing, LLC v. Weiss, 180 A.D.3d 654, 655, 115 N.Y.S.3d 693 ).
Since Merzius failed to establish a reasonable excuse for his default, he is precluded from raising lack of standing as a defense to this action (see HSBC Bank USA, N.A. v. Diallo, 190 A.D.3d 959, 960–961, 141 N.Y.S.3d 72 ; Deutsche Bank Natl. Trust Co. v. Hall, 185 A.D.3d 1006, 1011, 129 N.Y.S.3d 146 ).
RIVERA, J.P., MILLER, GENOVESI and FORD, JJ., concur.