Opinion
2017–11364 Index No. 12637/08
03-25-2020
WELLS FARGO BANK, N.A., Respondent, v. Lee SALZMANN, Appellant, et al., Defendants.
David A. Bythewood, Mineola, NY, for appellant. Frenkel Lambert Weiss Weisman & Gordon, LLP, Bay Shore, N.Y. (Ruth O'Connor of counsel), for respondent.
David A. Bythewood, Mineola, NY, for appellant.
Frenkel Lambert Weiss Weisman & Gordon, LLP, Bay Shore, N.Y. (Ruth O'Connor of counsel), for respondent.
MARK C. DILLON, J.P., COLLEEN D. DUFFY, BETSY BARROS, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
In an action to foreclose a mortgage, the defendant Lee Salzmann appeals from an order of the Supreme Court, Suffolk County (C. Randall Hinrichs, J.), dated July 21, 2017. The order, insofar as appealed from, denied that branch of that defendant's motion which was pursuant to CPLR 5015(a)(3) to vacate a judgment of foreclosure and sale of the same court entered January 23, 2017.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The plaintiff commenced this mortgage foreclosure action against, among others, the defendant Lee Salzmann (hereinafter the defendant), and subsequently a judgment of foreclosure and sale was entered upon the defendant's failure to appear or answer the complaint. Thereafter, the defendant moved, inter alia, pursuant to CPLR 5015(a)(3) to vacate the judgment of foreclosure and sale.
" ‘ CPLR 5015(a)(3) permits a court to vacate a judgment or order upon the ground of fraud, misrepresentation, or other misconduct of an adverse party’ " ( U.S. Bank, N.A. v. Robinson, 168 A.D.3d 1120, 1121, 93 N.Y.S.3d 87, quoting EMC Mtge. Corp. v. Toussaint, 136 A.D.3d 861, 862–863, 25 N.Y.S.3d 312 ). The defendant's contention that the plaintiff obtained the judgment of foreclosure and sale through the submission of fraudulent documents amounts to an allegation of intrinsic fraud (see U.S. Bank, N.A. v. Robinson, 168 A.D.3d at 1121, 93 N.Y.S.3d 87 ; Wells Fargo Bank, N.A. v. Shatles, 157 A.D.3d 750, 69 N.Y.S.3d 56 ). A defendant seeking to vacate a default based on intrinsic fraud must establish a reasonable excuse for his default and a potentially meritorious defense to the action (see U.S. Bank, N.A. v. Robinson, 168 A.D.3d at 1121, 93 N.Y.S.3d 87 ; OneWest Bank, FSB v. Galloway, 148 A.D.3d 818, 819, 49 N.Y.S.3d 484 ).
Here, the defendant failed to offer any excuse for his default (see U.S. Bank, N.A. v. Robinson, 168 A.D.3d at 1121, 93 N.Y.S.3d 87 ). Consequently, it is unnecessary to consider whether the defendant presented a potentially meritorious defense (see U.S. Bank, N.A. v. Robinson, 168 A.D.3d at 1121, 93 N.Y.S.3d 87 ; EMC Mtge. Corp. v. Asturizaga, 150 A.D.3d 824, 826, 55 N.Y.S.3d 66 ).
DILLON, J.P., DUFFY, BARROS and CONNOLLY, JJ., concur.