Opinion
16626 Index No. 113197/09 Case No. 2022–00626
11-10-2022
NYCTL 1998-2 TRUST, et al., Plaintiffs–Respondents, v. BETHELITE COMMUNITY BAPTIST CHURCH also known as Bethelite Community Church, Inc. et al., Defendants–Appellants. Atlah Worldwide Missionary Church, et al., Defendants.
Hegge & Confusione, LLC, New York (Michael Confusione of counsel), for appellant. Phillips Lytle LLP, Rochester (Tara M. Ward of counsel), for respondents.
Hegge & Confusione, LLC, New York (Michael Confusione of counsel), for appellant.
Phillips Lytle LLP, Rochester (Tara M. Ward of counsel), for respondents.
Renwick, J.P., Oing, Singh, Kennedy, JJ.
Order, Supreme Court, New York County (Francis Kahn, III, J.), entered on or about February 4, 2022, which denied defendant Bethelite Community Baptist Church a/k/a Bethelite Community Church, Inc.’s motion to vacate an order and judgment of foreclosure and sale of the same court (Arlene P. Bluth, J.), entered February 19, 2020, which granted plaintiffs’ motion for summary judgment against defendant, confirmed the Referee's report with respect to the amount owed, and granted a judgment of foreclosure and sale, unanimously affirmed, without costs.
The court correctly concluded that CPLR 5015(a)(1) was inapplicable because defendant never defaulted in appearance, even if it believed its attorney's work was sub-par. Defendant further failed to meet its heavy burden to demonstrate that vacatur was proper pursuant to CPLR 5015(a)(2). To the extent defendant relies on New York City Council resolutions and the Administrative Code as potentially newly discovered evidence, the legislative materials, which are matters of public record, are not, in general, deemed new evidence which could not have been discovered with due diligence (see generally Felix v. Law Offs. of Thomas F. Liotti, 129 A.D.3d 773, 9 N.Y.S.3d 887 [2d Dept. 2015], lv dismissed 26 N.Y.3d 1096, 24 N.Y.S.3d 577, 45 N.E.3d 615 [2016] ).
Defendant also does not directly address how the foreclosure judgment was the result of fraud, mistake, inadvertence, surprise, or excusable neglect as the basis for vacatur (see Long Is. Light. Co. v. Century Indem. Co., 52 A.D.3d 383, 384, 861 N.Y.S.2d 616 [1st Dept. 2008] ). Moreover, defendant's contention that it was denied due process because it was unable to challenge the interest rate charged on the lien at a hearing before a referee was rejected in ( NYCTL 1998–2 Trust v. Bethelite Community Baptist Church, 192 A.D.3d 429, 430, 139 N.Y.S.3d 796 [1st Dept. 2021], lv denied 37 N.Y.3d 906, 2021 WL 4098419 [2021] ), and defendant is barred by the law of the case doctrine from relitigating this issue (see Matter of Brodsky v. New York City Campaign Fin. Bd., 107 A.D.3d 544, 545–546, 971 N.Y.S.2d 265 [1st Dept. 2013] ). Even if we were to review defendant's argument, we would find that the motion court providently exercised its discretion in denying defendant's motion to vacate the foreclosure judgment on equitable grounds because the equities here do not favor defendant.
We have considered defendant's remaining arguments and find them unavailing.