Opinion
2018–00769 Index No. 20980/08
11-18-2020
ETRADE BANK, respondent, v. Anthony C. EJENAM, appellant, et al., defendants.
Law Office of Joseph N. Obiora LLC, Jamaica, NY, for appellant. Knuckles, Komosinski & Manfro, LLP, Elmsford, N.Y. (Edward L. Poff and Louis A. Levithan of counsel), for respondent.
Law Office of Joseph N. Obiora LLC, Jamaica, NY, for appellant.
Knuckles, Komosinski & Manfro, LLP, Elmsford, N.Y. (Edward L. Poff and Louis A. Levithan of counsel), for respondent.
REINALDO E. RIVERA, J.P., MARK C. DILLON, JOSEPH J. MALTESE, COLLEEN D. DUFFY, JJ.
DECISION & ORDER
ORDERED that the order dated November 6, 2017, is affirmed insofar as appealed from, with costs.
The plaintiff commenced this action to foreclose a mortgage against, among others, the defendant Anthony C. Ejenam (hereinafter the defendant). The defendant failed to answer the complaint or to otherwise appear in the action. After the Supreme Court appointed a referee to compute the amount due to the plaintiff and the referee issued a report, the plaintiff moved to confirm the referee's report and for a judgment of foreclosure and sale. The defendant opposed the plaintiff's motion and sought to vacate his default, alleging that he failed to answer the complaint or appear in the action because he was not served with process, and, further, that he had meritorious defenses to the foreclosure action, including that the plaintiff lacked standing to foreclose at the time of commencement. The Supreme Court reserved decision on the plaintiff's motion and referred the matter to a referee for a hearing to determine the validity of service of process. The defendant failed to appear at the hearing, and the court determined that the defendant was properly served with the summons and complaint and that his contentions regarding, among other things, the plaintiff's lack of standing were without merit. However, as the plaintiff failed to submit a copy of the assignment of the note in support of its motion, the court denied the plaintiff's motion, inter alia, for a judgment of foreclosure and sale without prejudice to renew upon proper papers.
The plaintiff subsequently moved for leave to renew its motion, among other things, for a judgment of foreclosure and sale. The Supreme Court granted the motion, finding that "the [p]laintiff is the assignee of both the subject mortgage and the underlying note and therefore has standing in this action." After the court issued a judgment of foreclosure and sale, the defendant filed for bankruptcy on several occasions, which resulted in multiple stays of the sale of the subject property. Thereafter, the plaintiff moved to set the date of the foreclosure sale, and in an order dated April 19, 2017 (hereinafter the sale order), the court granted the plaintiff's motion. The defendant then moved, inter alia, pursuant to CPLR 5015(a)(3) to vacate the sale order and the judgment of foreclosure and sale. In an order dated November 6, 2017, the court denied the defendant's motion. The defendant appeals.
" ‘ 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’ " ( U.S. Bank, N.A. v. Robinson, 168 A.D.3d 1120, 1121, 93 N.Y.S.3d 87, quoting EMC Mtge. Corp. v. Toussaint, 136 A.D.3d 861, 862–863, 25 N.Y.S.3d 312 ). The defendant's contention that the plaintiff obtained the judgment of foreclosure and sale through fraudulent misrepresentations pertaining to its possession of the note at the time of commencement of the action amounts to an allegation of intrinsic fraud (see U.S. Bank, N.A. v. Robinson, 168 A.D.3d at 1121, 93 N.Y.S.3d 87 ; EMC Mtge. Corp. v. Toussaint, 136 A.D.3d at 862–863, 25 N.Y.S.3d 312 ). Where a defendant seeks to vacate a default pursuant to CPLR 5015(a)(3) based on intrinsic fraud, he or she must establish a reasonable excuse for the default and a potentially meritorious defense to the action (see U.S. Bank N.A. v. Galloway, 150 A.D.3d 1174, 52 N.Y.S.3d 644 ; Deutsche Bank Natl. Trust Co. v. Karlis, 138 A.D.3d 915, 30 N.Y.S.3d 228 ; New Century Mtge. Corp. v. Corriette, 117 A.D.3d 1011, 986 N.Y.S.2d 560 ).
Here, the defendant failed to offer a reasonable excuse for his default in the action (see EMC Mtge. Corp. v. Asturizaga, 150 A.D.3d 824, 55 N.Y.S.3d 66 ; EMC Mtge. Corp. v. Toussaint, 136 A.D.3d at 863, 25 N.Y.S.3d 312 ). "Consequently, it is unnecessary to consider whether [the defendant] presented a potentially meritorious defense" ( U.S. Bank, N.A. v. Robinson, 168 A.D.3d at 1121, 93 N.Y.S.3d 87 ; see EMC Mtge. Corp. v. Asturizaga, 150 A.D.3d at 826, 55 N.Y.S.3d 66 ).
The defendant's remaining contentions are either academic or without merit.
RIVERA, J.P., DILLON, MALTESE and DUFFY, JJ., concur.