Opinion
13194N Index No. 380224/14 Case No. 2020-02417
02-23-2021
DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., Plaintiff–Respondent, v. Byron WILLOCK, Defendant–Appellant, The City of New York Department of Housing Preservation and Development, et al., Defendants.
Montalbano, Condon & Frank, P.C., New City (Paul S. Baum of counsel), for appellant. Jaspan Schlesinger LLP, Garden City (Victoria R. Gionesi of counsel), for respondent.
Montalbano, Condon & Frank, P.C., New City (Paul S. Baum of counsel), for appellant.
Jaspan Schlesinger LLP, Garden City (Victoria R. Gionesi of counsel), for respondent.
Kapnick, J.P., Webber, Mazzarelli, Oing, JJ.
Order, Supreme Court, Bronx County (Doris Gonzalez, J.), entered on or about February 18, 2020, which denied defendant Byron Willock's motion to vacate a deficiency judgment entered against him upon his default, unanimously affirmed, without costs.
On appeal, Willock has abandoned his argument that he had a reasonable excuse for failing to oppose plaintiff's motion for a deficiency judgment ( CPLR 5015[a][1] ). Instead, he claims that plaintiff committed "fraud, misrepresentation or other misconduct" ( CPLR 5015[a][3] ). This argument is improperly raised for the first time on appeal (see Ta–Chotani v. Doubleclick, Inc., 276 A.D.2d 313, 714 N.Y.S.2d 34 [1st Dept. 2000] ; Matter of Tamara B. v. Pete F., 220 A.D.2d 318, 632 N.Y.S.2d 563 [1st Dept. 1995] ). In any event, defendant failed to demonstrate that plaintiff perpetrated a fraud on him that induced him to refrain from defending the case (see Matter of Renaissance Economic Dev. Corp. v. Jin Hua Lin, 126 A.D.3d 465, 465, 2 N.Y.S.3d 787 [1st Dept. 2015], lv dismissed 26 N.Y.3d 953, 17 N.Y.S.3d 70, 38 N.E.3d 815 [2015] ). Contrary to defendant's argument, plaintiff presented appraisals setting forth the basis for determining fair market value and showing a range of potential values depending on conditions in the building. Defendant, having received notice of the motion, had the opportunity to appear and present other evidence of value, but instead defaulted.