Opinion
2017-00749 2017-00954 Index No. 3575/13
10-02-2019
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, Respondent, v. Usha DEV, etc., et al., Defendants, Mohammed B. Quaizar, Appellant.
Harvey Sorid, Uniondale, NY, for appellant. Leopold & Associates, PLLC, Armonk, N.Y. (Fernando C. Rivera–Maissonet of counsel), for respondent.
Harvey Sorid, Uniondale, NY, for appellant.
Leopold & Associates, PLLC, Armonk, N.Y. (Fernando C. Rivera–Maissonet of counsel), for respondent.
WILLIAM F. MASTRO, J.P., SYLVIA O. HINDS–RADIX, JOSEPH J. MALTESE, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER In an action to foreclose a mortgage, the defendant Mohammed B. Quaizar appeals from (1) an order of the Supreme Court, Queens County (Timothy J. Dufficy, J.), entered June 3, 2016, and (2) a judgment of foreclosure and sale of the same court entered November 22, 2016. The order, insofar as appealed from, granted the plaintiff's motion to confirm a referee's report and for a judgment of foreclosure and sale, and denied those branches of the cross motion of the defendant Mohammed B. Quaizar which were to vacate an order of the same court dated June 5, 2015, granting the plaintiff's unopposed motion, inter alia, for summary judgment on the amended complaint insofar as asserted against him, to strike his answer, and for an order of reference, and for summary judgment dismissing the amended complaint insofar as asserted against him. The judgment of foreclosure and sale, upon the ordered entered June 3, 2016, confirmed the referee's report and directed the sale of the subject property.
ORDERED that the appeal from the order entered June 3, 2016, is dismissed; and it is further,
ORDERED that the judgment of foreclosure and sale is affirmed; and it is further,
ORDERED that one bill of costs is awarded to the plaintiff.
The appeal from the order entered June 3, 2016, must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment of foreclosure and sale in the action (see Matter of Aho , 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647 ). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment of foreclosure and sale (see CPLR 5501[a][1] ; Matter of Aho , 39 N.Y.2d at 248, 383 N.Y.S.2d 285, 347 N.E.2d 647 ). In February 2013, the plaintiff commenced this mortgage foreclosure action against, among others, the defendant Mohammed B. Quaizar (hereinafter the defendant). The plaintiff moved, inter alia, for summary judgment on the amended complaint insofar as asserted against the defendant, to strike the defendant's answer, and for an order of reference. The defendant did not oppose that motion. In an order dated June 5, 2015, the Supreme Court granted the plaintiff's motion. Thereafter, the plaintiff moved to confirm a referee's report and for a judgment of foreclosure and sale. The defendant cross-moved, inter alia, to vacate the order dated June 5, 2015, and for summary judgment dismissing the amended complaint insofar as asserted against him. In an order entered June 3, 2016, the court granted the plaintiff's motion and denied the defendant's cross motion. On November 22, 2016, the court entered a judgment of foreclosure and sale confirming the referee's report and directing the sale of the subject property. The defendant appeals.
We agree with the Supreme Court's determination denying that branch of the defendant's cross motion which was to vacate the order dated June 5, 2015, which granted the plaintiff's motion, inter alia, for summary judgment on the amended complaint insofar as asserted against him, to strike his answer, and for an order of reference. "Under CPLR 5015(a), the court which rendered a judgment or order may relieve a party from it upon such terms as may be just, upon the ground of excusable default; newly discovered evidence; fraud, misrepresentation, or other misconduct of an adverse party; lack of jurisdiction to render the judgment or order; or reversal, modification, or vacatur of a prior judgment or order upon which it is based" ( Aurora Loan Servs., LLC v. Dorfman , 170 A.D.3d 786, 788, 96 N.Y.S.3d 152 ; see CPLR 5015[a] ; Nationstar Mtge., LLC v. Russo , 167 A.D.3d 913, 914, 91 N.Y.S.3d 122 ). "However, CPLR 5015(a) does not provide an exhaustive list as to when a default judgment [or order] may be vacated, and a court may vacate its own judgment [or order] for sufficient reason and in the interests of substantial justice" ( 40 BP, LLC v. Katatikarn , 147 A.D.3d 710, 711, 46 N.Y.S.3d 217 ). Although the Supreme Court retains "inherent discretionary power to relieve a party from a judgment or order for sufficient reason and in the interest of substantial justice" ( Galasso, Langione & Botter, LLP v. Liotti , 81 A.D.3d 884, 885, 917 N.Y.S.2d 667 ; see Ladd v. Stevenson , 112 N.Y. 325, 332, 19 N.E. 842 ; Katz v. Marra, 74 A.D.3d 888, 890, 905 N.Y.S.2d 204 ), "[a] court's inherent power to exercise control over its judgments is not plenary, and should be resorted to only to relieve a party from judgments taken through [fraud,] mistake, inadvertence, surprise or excusable neglect" ( Matter of McKenna v. County of Nassau, Off. of County Attorney , 61 N.Y.2d 739, 742, 472 N.Y.S.2d 913, 460 N.E.2d 1348 [internal quotation marks omitted]; see CitiMortgage, Inc. v. Maldonado , 171 A.D.3d 1007, 98 N.Y.S.3d 607 ; Aurora Loan Servs., LLC v. Dorfman , 170 A.D.3d at 788, 96 N.Y.S.3d 152 ).
Here, on his cross motion, the defendant explicitly sought vacatur "in the interests of justice." However, he failed to provide any evidence of fraud, mistake, inadvertence, surprise, or excusable neglect that would warrant vacatur in the interest of substantial justice (see CitiMortgage, Inc. v. Maldonado , 171 A.D.3d 1007, 98 N.Y.S.3d 607 ; Nationstar Mtge., LLC v. Russo , 167 A.D.3d at 915, 91 N.Y.S.3d 122 ; Wells Fargo Bank, N.A. v. Choo , 159 A.D.3d 938, 939, 72 N.Y.S.3d 150 ). Additionally, having properly denied vacatur, we agree with the Supreme Court's determination denying that branch of the defendant's cross motion which was for summary judgment dismissing the amended complaint insofar as asserted against him (see CitiMortgage, Inc. v. Maldonado , 171 A.D.3d 1007, 98 N.Y.S.3d 607 ; Citimortgage, Inc. v. Baser , 137 A.D.3d 735, 736, 26 N.Y.S.3d 352 ).
The defendant's remaining contention is without merit.
MASTRO, J.P., HINDS–RADIX, MALTESE and BRATHWAITE NELSON, JJ., concur.