Opinion
2015-04875 Index No. 24351/07.
02-17-2016
EMC MORTGAGE CORPORATION, etc., appellant, v. Jeanetta TOUSSAINT, also known as Jeanette Toussaint, respondent, et al., defendants.
Stiene & Associates, P.C., Huntington, N.Y. (Charles W. Marino of counsel), for appellant.
Stiene & Associates, P.C., Huntington, N.Y. (Charles W. Marino of counsel), for appellant.
Opinion
In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Queens County (Sampson, J.), entered January 31, 2011, which granted that branch of the motion of the defendant Jeanetta Toussaint, also known as Jeanette Toussaint, which was, in effect, pursuant to CPLR 5015(a) to vacate a judgment of foreclosure and sale of the same court entered April 22, 2009, upon her failure to appear or answer the complaint, and thereupon to dismiss the complaint insofar as asserted against her for lack of standing.
ORDERED that the order is reversed, on the law, with costs, that branch of the motion of the defendant Jeanetta Toussaint, also known as Jeanette Toussaint, which was, in effect, pursuant to CPLR 5015(a) to vacate the judgment of foreclosure and sale entered upon her failure to appear or answer the complaint, and thereupon to dismiss the complaint insofar as asserted against her for lack of standing is denied, and the judgment of foreclosure and sale is reinstated.
In 2007, the plaintiff commenced this mortgage foreclosure action against, among others, the defendant Jeanetta Toussaint, also known as Jeanette Toussaint (hereinafter the defendant). A judgment of foreclosure and sale was entered upon, inter alia, the defendant's failure to appear or answer the complaint. In 2010, nearly three years after she had been served with the summons and complaint, the defendant moved, in effect, to vacate the judgment of foreclosure and sale pursuant to CPLR 5015(a), and thereupon to dismiss the complaint insofar as asserted against her. The Supreme Court granted the defendant's motion. The plaintiff appeals.
A defendant seeking to vacate a default in answering or appearing upon the ground of excusable default must demonstrate a reasonable excuse for the default and a potentially meritorious defense to the action (see CPLR 5015[a]1; Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co., 67 N.Y.2d 138, 141, 501 N.Y.S.2d 8, 492 N.E.2d 116; Bank of Am. N.A. v. Patino, 128 A.D.3d 994, 994, 9 N.Y.S.3d 656; Wells Fargo Bank, N.A. v. Hampton, 119 A.D.3d 856, 989 N.Y.S.2d 368). Here, the defendant failed to proffer an excuse for failing to appear or answer the complaint. Thus, it is unnecessary to consider whether she sufficiently demonstrated the existence of a potentially meritorious defense (see U.S. Bank N.A. v. Smith, 132 A.D.3d 848, 19 N.Y.S.3d 62; Citimortgage, Inc. v. Bustamante, 107 A.D.3d 752, 753, 968 N.Y.S.2d 513; Bank of Am. v. Faracco, 89 A.D.3d 879, 880, 932 N.Y.S.2d 706; see also Williamson v. Marlou Cab Corp., 129 A.D.3d 711, 712, 9 N.Y.S.3d 410).
CPLR 5015(a)(3) permits a court to vacate a judgment or order upon the ground of fraud, misrepresentation, or other misconduct of an adverse party. Here, insofar as relevant, the defendant did not allege “extrinsic fraud,” which is “a fraud practiced in obtaining a judgment such that a party may have been prevented from fully and fairly litigating the matter” (Shaw v. Shaw, 97 A.D.2d 403, 403, 467 N.Y.S.2d 231; see U.S. Bank, N.A. v. Peters, 127 A.D.3d 742, 742, 9 N.Y.S.3d 58). Thus, she was required to show a reasonable excuse for her default (see U.S. Bank, N.A. v. Peters, 127 A.D.3d at 742, 9 N.Y.S.3d 58; Bank of N.Y. v. Lagakos, 27 A.D.3d 678, 679, 810 N.Y.S.2d 923). However, as stated previously, she failed to offer any excuse for her default (see Bank of N.Y. v. Lagakos, 27 A.D.3d at 679, 810 N.Y.S.2d 923).
Accordingly, the Supreme Court should have denied the defendant's motion, in effect, pursuant to CPLR 5015(a) to vacate the judgment of foreclosure and sale, and thereupon to dismiss the complaint insofar as asserted against her.