Opinion
2012-10360
11-26-2014
TUTHILL FINANCE, etc., respondent, v. ABUNDANT LIFE CHURCH, U.P.C., Inc., also known as Abundant Life Church, Inc., appellant, et al., defendants.
Walter T. Ramsey, Brooklyn, N.Y., for appellant. Robinowitz Cohlan Dubow and Doherty, LLP, White Plains, N.Y. (Bruce Minkoff of counsel), for respondent.
Walter T. Ramsey, Brooklyn, N.Y., for appellant.
Robinowitz Cohlan Dubow and Doherty, LLP, White Plains, N.Y. (Bruce Minkoff of counsel), for respondent.
MARK C. DILLON, J.P., THOMAS A. DICKERSON, JEFFREY A. COHEN, and COLLEEN D. DUFFY, JJ.
Opinion In an action to foreclose a mortgage, the defendant Abundant Life Church, U.P.C., Inc., also known as Abundant Life Church, Inc., appeals, as limited by its brief, from so much of an order of the Supreme Court, Westchester County (Lefkowitz, J.), entered September 20, 2012, as denied its motion pursuant to CPLR 5015(a) to vacate a judgment of foreclosure and sale of the same court entered March 12, 2010, upon its failure to appear or answer.
ORDERED the order is affirmed insofar as appealed from, with costs.
The Supreme Court properly denied the motion of the defendant Abundant Life Church, U.P.C., Inc., also known as Abundant Life Church, Inc. (hereinafter the defendant), pursuant to CPLR 5015(a)(1) and (3) to vacate the judgment of foreclosure and sale. To the extent that the defendant sought to vacate its default pursuant to CPLR 5015(a)(1), the defendant was not entitled to relief, as it failed to demonstrate both a reasonable excuse for its default and the existence of a potentially meritorious defense (see generally Wells Fargo Bank, N.A. v. Hampton, 119 A.D.3d 856, 856, 989 N.Y.S.2d 368 ; Jackson–Cutler v. Long, 2 A.D.3d 590, 768 N.Y.S.2d 360 ). To the extent the defendant sought to vacate its default pursuant to CPLR 5015(a)(3), the defendant was not entitled to relief, as it failed to demonstrate any fraud, misrepresentation, or other misconduct on the part of the plaintiff (see Bay Crest Assn., Inc. v. Paar, 99 A.D.3d 744, 746, 952 N.Y.S.2d 211 ; Gaw v. Gaw, 80 A.D.3d 557, 558, 914 N.Y.S.2d 665 ; see generally Wells Fargo Bank, N.A. v. Hampton, 119 A.D.3d at 856, 989 N.Y.S.2d 368 ).
The defendant's contention that it was entitled to a hearing on the issue of whether the plaintiff backdated an assignment of the mortgage in order to gain the standing necessary to prosecute this action is without merit. There is no support in the record for the defendant's conclusory claim that the assignment was improperly backdated. Moreover, “as long as the plaintiff can establish its lawful status as assignee, either by written assignment or physical delivery, prior to the filing of the complaint, the recording of a written assignment after the commencement of the action does not defeat standing” ( Aurora Loan Servs., LLC v. Weisblum, 85 A.D.3d 95, 108, 923 N.Y.S.2d 609 ; see Emigrant Mtge. Co., Inc. v. Persad, 117 A.D.3d 676, 677, 985 N.Y.S.2d 608 ).
The defendant's remaining contentions are not properly before this Court.