Opinion
2015–11815 Index No. 6216/09
11-29-2017
BANK OF AMERICA, N.A., etc., respondent, v. Samuel L. GOWRIE, et al., appellants, et al., defendants.
Regina Felton, Brooklyn, NY, for appellants. Gross Polowy, LLC (Reed Smith, LLP, New York, N.Y. [Andrew B. Messite and Joseph Teig ], of counsel), for respondent.
Regina Felton, Brooklyn, NY, for appellants.
Gross Polowy, LLC (Reed Smith, LLP, New York, N.Y. [Andrew B. Messite and Joseph Teig ], of counsel), for respondent.
WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, HECTOR D. LASALLE, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER In an action to foreclose a mortgage, the defendants Samuel L. Gowrie, Heather Gowrie, Sherwin Gowrie, and Simone Gowrie appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Velasquez, J.), dated February 26, 2015, as granted those branches of the plaintiff's motion which were to vacate a prior order of reference of the same court (Agate, J.) dated July 10, 2009, to vacate a judgment of foreclosure and sale of the same court (Agate, J.) dated November 4, 2009, and for a new order of reference.
ORDERED that the order dated February 26, 2015, is affirmed insofar as appealed from, with costs.
Contrary to the appellants' contention, the Supreme Court providently exercised its discretion in granting those branches of the plaintiff's motion which were to vacate a prior order of reference and a judgment of foreclosure and sale (see CPLR 5015[a][5] ; Bank of N.Y. Mellon v. Casale, 140 A.D.3d 682, 682, 33 N.Y.S.3d 345 ; Bank of N.Y. v. Stein, 130 A.D.3d 552, 552, 13 N.Y.S.3d 458 ). The plaintiff also was entitled to a new order of reference, since, in support of its motion, it submitted the mortgage, the underlying unpaid note, the complaint setting forth the facts establishing the claim, and an affidavit attesting to the default on the mortgage (see U.S. Bank N.A. v. Singer, 145 A.D.3d 1057, 1058, 44 N.Y.S.3d 472 ; Bank of N.Y. Mellon v. Casale, 140 A.D.3d at 682, 33 N.Y.S.3d 345 ; U.S. Bank N.A. v. Ahmed, 137 A.D.3d 1106, 1108, 29 N.Y.S.3d 33 ; U.S. Bank N.A. v. Gulley, 137 A.D.3d 1008, 1009, 27 N.Y.S.3d 601 ; Bank of N.Y. v. Stein, 130 A.D.3d at 552, 13 N.Y.S.3d 458 ).
On a prior appeal, this Court affirmed an order denying the appellants' motion pursuant to CPLR 5015(a)(1) to vacate their default in answering the complaint (see Bank of Am., N.A. v. Gowrie, 106 A.D.3d 677, 963 N.Y.S.2d 878 ). Contrary to the appellants' contention, since they defaulted in answering the complaint and failed to demonstrate grounds for vacating their default, they are precluded from asserting, in essence, the plaintiff's lack of standing as a basis for denial of that branch of the plaintiff's motion which was for a new order of reference (cf. Bank of N.Y. Mellon v. Izmirligil, 144 A.D.3d 1067, 1068, 44 N.Y.S.3d 44 ).
The appellants' remaining contentions are without merit.
MASTRO, J.P., CHAMBERS, LASALLE and BRATHWAITE NELSON, JJ., concur.