Opinion
2015-07622. Index No. 13825/01.
08-16-2017
WELLS FARGO BANK MINNESOTA, N.A., as trustee for certificate holder of Kidder Peabody Series 1993–MM5, plaintiff, v. Michael COLETTA, et al., appellants, et al., defendants; PE–NC, LLC, nonparty-respondent.
Francis X. Casale, Jr., PLLC, Melville, NY, for appellants. Lawrence and Walsh, P.C., Hempstead, NY (Eric P. Wainer of counsel), for nonparty-respondent.
Francis X. Casale, Jr., PLLC, Melville, NY, for appellants.
Lawrence and Walsh, P.C., Hempstead, NY (Eric P. Wainer of counsel), for nonparty-respondent.
RUTH C. BALKIN, J.P., LEONARD B. AUSTIN, SHERI S. ROMAN, and HECTOR D. LaSALLE, JJ.
In an action to foreclose a mortgage, the defendants Michael Coletta and Susan A. Coletta, also known as Susan Coletta, appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Adams, J.), entered April 13, 2015, as denied that branch of their cross motion which was pursuant to CPLR 5015(a)(3) to vacate a judgment of foreclosure and sale entered August 23, 2004, upon their failure to appear or answer the complaint.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The Supreme Court properly denied that branch of the appellants' cross motion which was pursuant to CPLR 5015(a)(3) to vacate the judgment of foreclosure and sale entered upon their failure to appear or answer the complaint. The appellants failed to move for relief pursuant to CPLR 5015(a)(3) within a reasonable time after entry of the judgment of foreclosure and sale (see New Century Mtge. Corp. v. Chimmiri, 146 A.D.3d 893, 45 N.Y.S.3d 209 ; LaSalle Bank N.A. v. Oberstein, 146 A.D.3d 945, 45 N.Y.S.3d 538 ; Dimery v. Ulster Sav. Bank, 82 A.D.3d 1034, 920 N.Y.S.2d 144 ; Bank of N.Y. v. Stradford, 55 A.D.3d 765, 869 N.Y.S.2d 554 ; Aames Capital Corp. v. Davidsohn, 24 A.D.3d 474, 475, 808 N.Y.S.2d 229 ).
Moreover, the appellants 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 LaSalle Bank N.A. v. Oberstein, 146 A.D.3d at 945, 45 N.Y.S.3d 538; EMC Mtge. Corp. v. Toussaint, 136 A.D.3d 861, 25 N.Y.S.3d 312 ; U.S. Bank, N.A. v. Peters, 127 A.D.3d 742, 9 N.Y.S.3d 58 ; Bank of N.Y. v. Lagakos, 27 A.D.3d 678, 810 N.Y.S.2d 923 ; Tamimi v. Tamimi, 38 A.D.2d 197, 328 N.Y.S.2d 477 ). Rather, they alleged that the plaintiff committed "intrinsic fraud, i.e., that the allegations in the complaint are false" (LaSalle Bank N.A. v. Oberstein, 146 A.D.3d at 945, 45 N.Y.S.3d 538; see Deutsche Bank Natl. Trust Co. v. Karlis, 138 A.D.3d 915, 30 N.Y.S.3d 228 ; U.S. Bank, N.A. v. Peters, 127 A.D.3d at 742, 9 N.Y.S.3d 58 ; New Century Mtge. Corp. v. Corriette, 117 A.D.3d 1011, 986 N.Y.S.2d 560 ; Bank of N.Y. v. Stradford, 55 A.D.3d at 765, 869 N.Y.S.2d 554 ; Bank of N.Y. v. Lagakos, 27 A.D.3d at 679, 810 N.Y.S.2d 923 ).
Thus, the appellants were required to show a reasonable excuse for their default (see EMC Mtge. Corp. v. Toussaint, 136 A.D.3d at 862–863, 25 N.Y.S.3d 312; 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 at 679, 810 N.Y.S.2d 923 ). Since they failed to offer any excuse for their default, the Supreme Court properly denied that branch of their cross motion which was pursuant to CPLR 5015(a)(3) (see EMC Mtge. Corp. v. Toussaint, 136 A.D.3d at 862–863, 25 N.Y.S.3d 312; 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 at 679, 810 N.Y.S.2d 923 ).