Opinion
No. 2017-12343 Index No. 15754/11
06-07-2023
Bank of New York Mellon, etc., respondent, v. Kevin Vaden, appellant, et al., defendants.
Kevin W.Vaden, sued herein as Kevin Vaden, Amityville, NY, appellant pro se. Eckert Seamans Cherin & Mellott, LLC, White Plains, NY (Kenneth J. Flickinger of counsel), for respondent.
Kevin W.Vaden, sued herein as Kevin Vaden, Amityville, NY, appellant pro se.
Eckert Seamans Cherin & Mellott, LLC, White Plains, NY (Kenneth J. Flickinger of counsel), for respondent.
MARK C. DILLON, J.P., LINDA CHRISTOPHER, LARA J. GENOVESI, HELEN VOUTSINAS, JJ.
DECISION & ORDER
In an action to foreclose a mortgage, the defendant Kevin Vaden appeals from an order of the Supreme Court, Suffolk County (Joseph A. Santorelli, J.), dated October 5, 2017. The order, insofar as appealed from, denied that defendant's motion pursuant to CPLR 5015(a)(3) to vacate a judgment of foreclosure and sale of the same court entered June 24, 2015, upon his failure to appear or answer the complaint, and to set aside the foreclosure sale of the subject property.
ORDERED that the order is affirmed insofar as appealed from, with costs.
In May 2011, the plaintiff commenced this action against, among others, the defendant Kevin Vaden (hereinafter the defendant) to foreclose a mortgage on residential property located in Amityville owned by the defendant (hereinafter the subject property). On May 14, 2011, the defendant was served with the summons and complaint, but he failed to appear or answer the complaint. Thereafter, on June 24, 2015, the Supreme Court entered a judgment of foreclosure and sale. A foreclosure sale of the subject property was held on January 11, 2017.
In May 2017, the defendant moved pursuant to CPLR 5015(a)(3) to vacate the judgment of foreclosure and sale and to set aside the foreclosure sale of the subject property. In an order dated October 5, 2017, the Supreme Court, inter alia, denied the defendant's motion. The defendant appeals.
The Supreme Court properly denied the defendant's motion pursuant to CPLR 5015(a)(3) to vacate the judgment of foreclosure and sale and to set aside the foreclosure sale of the subject property. Where, as here, a defendant moves pursuant to CPLR 5015(a)(3) to vacate a default based on intrinsic fraud, i.e., on the basis that the plaintiff made false allegations about its standing to commence the action and/or submitted fraudulent documents in support thereof, the defendant must establish both a reasonable excuse for the default and a potentially meritorious defense to the action (see Wells Fargo Bank, N.A. v Arratia, 207 A.D.3d 598, 600; Deutsche Bank Natl. Trust Co. v Pagan, 183 A.D.3d 801, 802-803; OneWest Bank, FSB v Galloway, 148 A.D.3d 818, 819). Here, since the defendant presented no excuse for his default, the court properly denied his motion (see CitiMortgage, Inc. v Nunez, 198 A.D.3d 865, 866; OneWest Bank, FSB v Galloway, 148 A.D.3d at 819), and "it was unnecessary to consider whether he presented a potentially meritorious defense, including lack of standing" (HSBC Bank USA, N.A. v Walker, 201 A.D.3d 795, 797; see JPMorgan Chase Bank, N.A. v Multani, 196 A.D.3d 549, 550).
In light of our determination, the parties' remaining contentions need not be reached.
DILLON, J.P., CHRISTOPHER, GENOVESI and VOUTSINAS, JJ., concur.