Opinion
October 25, 1976
In a mortgage foreclosure action, plaintiff appeals from an order of the Supreme Court, Orange County, dated August 1, 1975, which granted defendant's motion to vacate and set aside a judgment of the same court, entered in plaintiff's favor, upon an order granting plaintiff's motion for summary judgment. Order reversed, with $50 costs and disbursements, and defendant's motion denied. The moving papers fail to allege fraud in the procurement of the judgment (see CPLR 5015, subd [a], par 3; Crouse v McVickar, 207 N.Y. 213, 218; Mayor of City of N.Y. v Brady, 115 N.Y. 599, 614-615; 9 Carmody-Wait 2d, § 63:164). Moreover, the so-called newly discovered evidence purportedly establishing fraud was readily obtainable at the time the action was commenced and should have been interposed in opposition to the motion for summary judgment (see CPLR 3018, subd [b]; Mully v Drayn, 51 A.D.2d 660; 755 Seventh Ave. Corp. v Carroll, 266 N.Y. 157, 162). Defendant should not, at this late date, and after the property has been sold to a bona fide purchaser without notice, be permitted to raise "a 'newly discovered theory' of defense" (see Merritt v Merritt, 259 App. Div. 242, 244-245; see, also, Matter of Alexandroff, 183 Misc. 95, 99). Gulotta, P.J., Hopkins, Latham, Shapiro and Hawkins, JJ., concur.