Opinion
2014-12-3
WELLS FARGO BANK, N.A., respondent, v. Moshe BRAUN, et al., appellants, et al., defendant.
Phillip J. Murphy, New City, N.Y., for appellants. Hogan Lovells U.S. LLP, New York, N.Y. (David Dunn, Chava Brandriss, and Heather R. Gushue of counsel), for respondent.
Phillip J. Murphy, New City, N.Y., for appellants. Hogan Lovells U.S. LLP, New York, N.Y. (David Dunn, Chava Brandriss, and Heather R. Gushue of counsel), for respondent.
RUTH C. BALKIN, J.P., L. PRISCILLA HALL, LEONARD B. AUSTIN and BETSY BARROS, JJ.
In an action to foreclose a mortgage, the defendants Moshe Braun and Yehudas Braun appeal, as limited by their brief, from stated portions of an order of the Supreme Court, Rockland County (Garvey, J.), dated August 22, 2012, which, inter alia, denied that branch of their motion which was pursuant to CPLR 5015(a)(3) to vacate a judgment of foreclosure and sale of the same court entered July 30, 2008, 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 motion of the defendants Moshe Braun and Yehudas Braun (hereinafter together the defendants) which was to vacate a judgment of foreclosure and sale pursuant to CPLR 5015(a)(3). Under the circumstances of this case, the defendants failed to move for relief pursuant to CPLR 5015(a)(3) within a reasonable time after entry of the judgment ( see Indymac Bank, F.S.B. v. Yano–Horoski, 107 A.D.3d 672, 965 N.Y.S.2d 888; Bank of N.Y. v. Stradford, 55 A.D.3d 765, 765, 869 N.Y.S.2d 554). In any event, the defendants failed to provide a reasonable excuse for the default, which is required when a CPLR 5015(a)(3) motion alleges intrinsic fraud, i.e., that the allegations in the complaint are false ( see New Century Mtge. Corp. v. Corriette, 117 A.D.3d 1011, 1012, 986 N.Y.S.2d 560; Bank of N.Y. v. Stradford, 55 A.D.3d at 765–766, 869 N.Y.S.2d 554; Bank of N.Y. v. Lagakos, 27 A.D.3d 678, 679, 810 N.Y.S.2d 923).
In light of our determination, we need not address the parties' remaining contentions.