Summary
finding that motion to vacate was properly denied where "plaintiff offered no evidence of fraud, mistake, inadvertence, surprise, or excusable neglect warranting vacatur in the interests of substantial justice"
Summary of this case from In re Densply Sirona, Inc. S'holders Litig.Opinion
2017–04646 Index No. 44549/07
09-11-2019
LASALLE BANK, N.A., etc., Appellant, v. Catherine DELICE, et al., Respondents, et al., Defendants.
McGlinchey Stafford PLLC, New York, N.Y. (Brian S. McGrath and Victor L. Matthews of counsel), for appellant. Vital & Associates, PLLC, New York, N.Y. (Y. Andre Vital of counsel), for respondents.
McGlinchey Stafford PLLC, New York, N.Y. (Brian S. McGrath and Victor L. Matthews of counsel), for appellant.
Vital & Associates, PLLC, New York, N.Y. (Y. Andre Vital of counsel), for respondents.
WILLIAM F. MASTRO, J.P., RUTH C. BALKIN, BETSY BARROS, LINDA CHRISTOPHER, JJ.
DECISION & ORDER ORDERED that the order dated February 27, 2017, is affirmed, with costs.
The plaintiff commenced this mortgage foreclosure action in December 2007. None of the defendants served an answer. In October 2009, the Supreme Court granted the plaintiff's motion, inter alia, for leave to enter a judgment against the defendants upon their failure to appear or answer the complaint and for an order of reference. In May 2010, following settlement conferences held pursuant to CPLR 3408, the action was released from the foreclosure settlement conference part without any resolution. In June 2010, the plaintiff moved for a judgment of foreclosure and sale. However, in October 2010, the plaintiff requested that its motion for a judgment of foreclosure and sale be withdrawn. In an order dated January 12, 2011, the court granted the plaintiff's request to withdraw the motion and, on the ground that it was conserving judicial resources, sua sponte, directed dismissal of the complaint without prejudice and cancelled the notice of pendency.
In October 2016, the plaintiff moved to vacate the January 2011 dismissal order and to restore the action to the calendar. In an order dated February 27, 2017, the Supreme Court denied the motion. The plaintiff appeals.
CPLR 5015(a) provides that a court "which rendered a judgment or order may relieve a party from it upon such terms as may be just." In addition to the specific grounds set forth in section 5015(a), a court may, in its discretion, vacate its own judgment "for sufficient reason and in the interests of substantial justice" ( Woodson v. Mendon Leasing Corp. , 100 N.Y.2d 62, 68, 760 N.Y.S.2d 727, 790 N.E.2d 1156 ; see Nash v. Port Auth. of N.Y. & N.J. , 22 N.Y.3d 220, 225–226, 980 N.Y.S.2d 880, 3 N.E.3d 1128 ; Aurora Loan Servs., LLC v. Dorfman , 170 A.D.3d 786, 788, 96 N.Y.S.3d 152 ). However, "[a] court's inherent power to exercise control over its judgments is not plenary, and should be resorted to only to relieve a party from judgments taken through [fraud], mistake, inadvertence, surprise or excusable neglect" ( Matter of McKenna v. County of Nassau, Off. of County Attorney , 61 N.Y.2d 739, 742, 472 N.Y.S.2d 913, 460 N.E.2d 1348 [internal quotation marks omitted]; see Aurora Loan Servs., LLC v. Dorfman , 170 A.D.3d at 788, 96 N.Y.S.3d 152 ; IndyMac Bank, FSB v. Izzo , 166 A.D.3d 866, 868, 89 N.Y.S.3d 196 ).
The Supreme Court did not improvidently exercise its discretion in denying the plaintiff's October 2016 motion to vacate the January 2011 order. The plaintiff offered no evidence of fraud, mistake, inadvertence, surprise, or excusable neglect warranting vacatur in the interests of substantial justice (see Nationstar Mtge., LLC v. Russo , 167 A.D.3d 913, 915, 91 N.Y.S.3d 122 ; Wells Fargo Bank, N.A. v. Choo , 159 A.D.3d 938, 939, 72 N.Y.S.3d 150 ; HSBC Bank USA v. Josephs–Byrd , 148 A.D.3d 788, 790, 49 N.Y.S.3d 477 ). Moreover, the plaintiff did not seek permission to appeal from the January 2011 dismissal order or commence a new action. Most importantly, the plaintiff did not provide any explanation as to why it delayed more than five years before filing its motion to vacate, apart from the vague assertion that it hired new counsel because, at some point, the law firm that represented the plaintiff at the time of the January 2011 order subsequently closed. The plaintiff's contention that the delay was justified because its subsequent counsel expended extensive efforts to comply with Administrative Orders 548/10 and 431/11 of the Chief Administrative Judge of the Courts is raised for the first time on appeal and not properly before us (cf. U.S. Bank N.A. v. Ahmed , 137 A.D.3d 1106, 1108–1109, 29 N.Y.S.3d 33 ). The plaintiff's lengthy delay in moving to vacate, failure to adequately explain the delay, and failure to pursue other available avenues of relief support the court's determination not to exercise its discretion to vacate the dismissal order in the interests of substantial justice (see HSBC Bank USA v. Josephs–Byrd , 148 A.D.3d at 790, 49 N.Y.S.3d 477 ; cf. U.S. Bank N.A. v. Ahmed , 137 A.D.3d at 1108–1109, 29 N.Y.S.3d 33 ).
In light of our determination, we need not reach the respondents' remaining contentions, which are raised as alternative grounds for affirmance (see Lamberti v. Plaza Equities, LLC , 161 A.D.3d 841, 73 N.Y.S.3d 901 ).
MASTRO, J.P., BALKIN, BARROS and CHRISTOPHER, JJ., concur.