Opinion
06-01-2016
DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., respondent, v. Sumter F. Hazzard ADOLPH, et al., defendants, Elaine H. Darling–Cummings, etc., appellant.
Law Office of Anthony J. Maiocchi, PLLC, Hawthorne, NY (Joseph M. Latino of counsel), for appellant. Hogan Lovells U.S. LLP, New York, NY (Benjamin P. Jacobs, David Dunn, and Chava Brandriss of counsel), for respondent.
Law Office of Anthony J. Maiocchi, PLLC, Hawthorne, NY (Joseph M. Latino of counsel), for appellant.
Hogan Lovells U.S. LLP, New York, NY (Benjamin P. Jacobs, David Dunn, and Chava Brandriss of counsel), for respondent.
In an action to foreclose a mortgage, the defendant Elaine H. Darling–Cummings, as trustee of the Darling–Cummings Gift Trust, appeals from an order of the Supreme Court, Westchester County (Bellantoni, J.), dated December 16, 2014, which denied her motion pursuant to CPLR 5015(a)(3) to vacate an order of reference of the same court (Liebowitz, J.) entered April 15, 2010, and a judgment of foreclosure and sale of the same court (Liebowitz, J.) entered July 12, 2010, upon her failure to appear or answer the complaint.
ORDERED that the order dated December 16, 2014, is affirmed, with costs. The defendant Elaine H. Darling–Cummings, as trustee of the Darling–Cummings Gift Trust (hereinafter the defendant), was not entitled to vacatur of an order of reference or a judgment of foreclosure and sale pursuant to CPLR 5015(a)(3), since she failed to demonstrate that the order or the judgment were procured by “fraud, misrepresentation, or other misconduct of any adverse party” (Empire State Conglomerates v. Mahbur, 105 A.D.3d 898, 899, 963 N.Y.S.2d 330 ; see HSBC Bank USA, N.A. v. Miller, 121 A.D.3d 1044, 995 N.Y.S.2d 198 ; Bank of N.Y. v. Stradford, 55 A.D.3d 765, 765, 869 N.Y.S.2d 554 ). Furthermore, under the circumstances of this case, the plaintiff's failure to name an alleged indispensable party as a defendant in the action did not provide a basis to challenge the order of reference or the judgment of foreclosure and sale (see RPAPL 1311[1] ; NYCTL 1996–1 Trust v. King, 304 A.D.2d 629, 630–631, 758 N.Y.S.2d 374 ; Bancplus Mtge. Corp. v. Galloway, 203 A.D.2d 222, 223, 610 N.Y.S.2d 60 ).
Accordingly, the Supreme Court properly denied the defendant's motion pursuant to CPLR 5015(a)(3) to vacate the order of reference and the judgment of foreclosure and sale.
MASTRO, J.P., RIVERA, AUSTIN and LaSALLE, JJ., concur.