Opinion
No. 2019-13832 Index No. 12114/10
04-12-2023
Bank of New York Mellon, etc., respondent, v. Jean Robert Geffrard, et al., defendants, Emmanuel Roy, appellant.
Rozario Touma, P.C., New York, NY (Rovin R. Rozario of counsel), for appellant. Pincus Law Group, PLLC, Uniondale, NY (Barry Weiss of counsel), for respondent.
Rozario Touma, P.C., New York, NY (Rovin R. Rozario of counsel), for appellant.
Pincus Law Group, PLLC, Uniondale, NY (Barry Weiss of counsel), for respondent.
BETSY BARROS, J.P. REINALDO E. RIVERA LARA J. GENOVESI HELEN VOUTSINAS, JJ.
DECISION & ORDER
In an action to foreclose a mortgage, the defendant Emmanuel Roy appeals from an order of the Supreme Court, Kings County (Mark I. Partnow, J.), dated September 5, 2019. The order, insofar as appealed from, denied that branch of the motion of the defendant Emmanuel Roy which was pursuant to CPLR 5015(a)(1) to vacate an order of the same court (David B. Vaughan, J.) dated September 5, 2012, granting the plaintiff's unopposed motion, inter alia, for summary judgment dismissing that defendant's counterclaims, and granted the plaintiff's unopposed motion to confirm a referee's report, for a judgment of foreclosure and sale, and for an award of attorneys' fees.
ORDERED that the appeal from so much of the order dated September 5, 2019, as granted the plaintiff's unopposed motion to confirm a referee's report, for a judgment of foreclosure and sale, and for an award of attorneys' fees is dismissed, as no appeal lies from a portion of an order that was entered upon the default of the appealing party (see CPLR 5511); and it is further, ORDERED that the order dated September 5, 2019, is affirmed insofar as reviewed; and it is further, ORDERED that one bill of costs is awarded to the plaintiff.
Pursuant to CPLR 5015(a)(1), a court may relieve a party from a judgment or order on the ground of excusable default, if a motion for that relief is made within one year after service of a copy of the judgment or order with written notice of entry (see id.; U.S. Bank N.A. v Bien-Aime, 123 A.D.3d 696, 697). Moreover, even after expiration of the one-year limitations period set forth in CPLR 5015, "a court may vacate its own judgment for sufficient reason and in the interests of substantial justice" (Woodson v Mendon Leasing Corp., 100 N.Y.2d 62, 68; see Yung Chong Ho v Uppal, 130 A.D.3d 811, 812).
Here, that branch of the motion of the defendant Emmanuel Roy (hereinafter the defendant) which was pursuant to CPLR 5015(a)(1) to vacate an order dated September 5, 2012, granting the plaintiff's unopposed motion, inter alia, for summary judgment dismissing the defendant's counterclaims, was untimely since it was not made within one year after service upon him of a copy of the order with written notice of entry (see id.; Deutsche Bank Natl. Trust Co. v Fernandez, 208 A.D.3d 1151, 1153; Yung Chong Ho v Uppal, 130 A.D.3d at 813). Further, there was no basis for an extension of the one-year period in the exercise of discretion, since the defendant failed to demonstrate a reasonable excuse for his lengthy delay in moving to vacate that order (see Yung Chong Ho v Uppal, 130 A.D.3d at 813; U.S. Bank N.A. v Bien-Aime, 123 A.D.3d at 697).
The defendant's remaining contentions either are improperly raised for the first time on appeal or need not be reached in light of our determination.
BARROS, J.P., RIVERA, GENOVESI and VOUTSINAS, JJ., concur.