Opinion
2021-06157 Index 8495/14
11-10-2021
Globe Trade Capital, LLC, respondent, v. Thomas J. Hoey, Jr., et al., appellants, et al., defendants.
Joseph T. Adragna, Huntington, NY, for appellants. Meyer, Suozzi, English & Klein, P.C., Garden City, NY (Howard B. Kleinberg of counsel), for respondent.
Joseph T. Adragna, Huntington, NY, for appellants.
Meyer, Suozzi, English & Klein, P.C., Garden City, NY (Howard B. Kleinberg of counsel), for respondent.
REINALDO E. RIVERA, J.P., SYLVIA O. HINDS-RADIX, ROBERT J. MILLER, PAUL WOOTEN, JJ.
DECISION & ORDER
In an action to foreclose a mortgage, the defendants Thomas J. Hoey, Jr., and Wendy Hoey, individually and as trustees of the Thomas J. Hoey Jr. and Wendy Hoey Living Trust, appeal from an order of the Supreme Court, Nassau County (James P. McCormack, J.), entered December 20, 2019. The order denied those defendants' motion, inter alia, pursuant to CPLR 5015(a)(2) and (3) to vacate a judgment of foreclosure and sale of the same court (Daniel R. Palmieri, J.) entered September 5, 2017.
ORDERED that the order is affirmed, with costs.
In this mortgage foreclosure action, the Supreme Court entered a judgment of foreclosure and sale on September 5, 2017. The defendants Thomas J. Hoey, Jr., and Wendy Hoey (hereinafter together the defendants), who were sued individually and in their capacities as trustees of the Thomas J. Hoey Jr. and Wendy Hoey Living Trust, moved, inter alia, pursuant to CPLR 5015(a)(2) and (3) to vacate the judgment of foreclosure and sale. The Supreme Court denied the motion. The defendants appeal.
Contrary to the plaintiff's contention, the sale of the subject property did not render this appeal academic (see CPLR 5015[d]; 5523; U.S. Bank Natl. Assn. v Vanvliet, 24 A.D.3d 906, 909; see also CIT Tech. Fin. Servs., Inc. v Tricycle Enters., Inc., 13 A.D.3d 783, 784).
However, as the Supreme Court found, the defendants failed to establish their entitlement to vacatur of the judgment of foreclosure and sale based on newly discovered evidence. In order to succeed on a motion pursuant to CPLR 5015(a)(2) to vacate an order or judgment on the ground of newly discovered evidence, the movant must establish that the evidence could not have been discovered earlier through the exercise of due diligence (see Ferdico v Zweig, 82 A.D.3d 1151, 1152; Sieger v Sieger, 51 A.D.3d 1004, 1005) and that the newly discovered evidence would likely have produced a different result (see Wall St. Mtge. Bankers, Ltd. v Rodgers, 148 A.D.3d 1088, 1089; IMC Mtge. Co. v Vetere, 142 A.D.3d 954, 955). Here, the new evidence submitted on the defendants' motion would not have changed the outcome of the motions that resulted in the judgment of foreclosure and sale (see Anghel v Ruskin Moscou Faltischek, P.C., 190 A.D.3d 903, 905; Cruz v Cruz, 186 A.D.3d 1796, 1798).
Further, the defendants did not establish that the judgment of foreclosure and sale should be vacated on the grounds of fraud, misrepresentation, or other misconduct. "'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, quoting EMC Mtge. Corp. v Toussaint, 136 A.D.3d 861, 862-863). The defendants failed to show that any alleged fraud, misrepresentation, or misconduct was attributable to the plaintiff, or that any such alleged conduct was material to the action (see Anghel v Ruskin Moscou Faltischek, P.C., 190 A.D.2d at 905-906; Deutsche Bank Natl. Trust Co. v Afram, 188 A.D.3d 593, 594; see also Deutsche Bank Natl. Trust Co. v Conway, 169 A.D.3d 641, 642).
The defendants' remaining contentions are without merit.
Accordingly, the Supreme Court properly denied the defendants' motion, inter alia, pursuant to CPLR 5015(a)(2) and (3) to vacate the judgment of foreclosure and sale.
RIVERA, J.P., HINDS-RADIX, MILLER and WOOTEN, JJ., concur. 1