Opinion
2018–08925 Index No. 507842/13
04-27-2022
NATIONSTAR MORTGAGE, LLC, respondent, v. Vernia Elizabeth STUTMAN, etc., appellant, et al., defendants.
Solomon Rosengarten, Brooklyn, NY, for appellant. McCalla Raymer Leibert Pierce, LLC, New York, NY (Richard P. Haber of counsel), for respondent.
Solomon Rosengarten, Brooklyn, NY, for appellant.
McCalla Raymer Leibert Pierce, LLC, New York, NY (Richard P. Haber of counsel), for respondent.
ANGELA G. IANNACCI, J.P., REINALDO E. RIVERA, PAUL WOOTEN, DEBORAH A. DOWLING, JJ.
DECISION & ORDER In an action to foreclose a mortgage, the defendant Vernia Elizabeth Stutman appeals from a judgment of foreclosure and sale of the Supreme Court, Kings County (Noach Dear, J.), dated May 3, 2018. The judgment of foreclosure and sale, upon an order of the same court dated May 3, 2018, granting the plaintiff's motion to confirm a referee's report and for a judgment of foreclosure and sale, and denying that defendant's cross motion (1) pursuant to CPLR 5015(a)(3) to vacate an order of the same court (Bert A. Bunyan, J.) dated October 5, 2015, which granted the plaintiff's unopposed motion for summary judgment on the complaint insofar as asserted against her and for an order of reference, and (2) to dismiss the complaint insofar as against her, inter alia, directed the sale of the subject property.
ORDERED that the judgment of foreclosure and sale is affirmed, with costs.
In December 2013, the plaintiff commenced this action against the defendant Vernia Elizabeth Stutman (hereinafter the defendant), among others, to foreclose a mortgage encumbering certain real properly located in Brooklyn. The defendant failed to appear or answer the complaint. By order dated October 5, 2015, the Supreme Court, inter alia, granted the plaintiff's unopposed motion for summary judgment on the complaint insofar as asserted against the defendant and for an order of reference. The plaintiff thereafter moved to confirm the referee's report and for a judgment of foreclosure and sale. The defendant opposed the plaintiff's motion, and cross-moved pursuant to CPLR 5015(a)(3) to vacate the order dated October 5, 2015, and to dismiss the complaint insofar as asserted against her, on the ground that the plaintiff had committed fraud by making false allegations in the complaint and submitting fraudulent evidence of its standing to commence this action. In an order dated May 3, 2018, the Supreme Court granted the plaintiff's motion and denied the defendant's cross motion. A judgment of foreclosure and sale dated May 3, 2018, inter alia, directing the sale of the subject property was subsequently entered. The defendant appeals.
The defendant's contention in support of her cross motion that the plaintiff had committed fraud by making false allegations in the complaint and submitting fraudulent evidence of its standing to commence this action amounts to an allegation of intrinsic fraud (see CitiMortgage, Inc. v. Nunez, 198 A.D.3d 865, 866, 152 N.Y.S.3d 830 ; Deutsche Bank Natl. Trust Co. v. Pagan, 183 A.D.3d 801, 802, 122 N.Y.S.3d 521 ; Wells Fargo Bank, N.A. v. Salzmann, 181 A.D.3d 896, 896–897, 119 N.Y.S.3d 898 ; Wells Fargo Bank, N.A. v. Shatles, 157 A.D.3d 750, 751, 69 N.Y.S.3d 56 ; OneWest Bank, FSB v. Galloway, 148 A.D.3d 818, 818, 49 N.Y.S.3d 484 ; Bank of N.Y. v. Lagakos, 27 A.D.3d 678, 679, 810 N.Y.S.2d 923 ). "A defendant seeking to vacate a default pursuant to CPLR 5015(a)(3) based on intrinsic fraud must establish a reasonable excuse for the default and a potentially meritorious defense to the action" ( CitiMortgage, Inc. v. Nunez, 198 A.D.3d at 866, 152 N.Y.S.3d 830 ; see Deutsche Bank Natl. Trust Co. v. Pagan, 183 A.D.3d at 802, 122 N.Y.S.3d 521 ; U.S. Bank, N.A. v. Robinson, 168 A.D.3d 1120, 1121, 93 N.Y.S.3d 87 ; Wells Fargo Bank, N.A. v. Shatles, 157 A.D.3d at 751, 69 N.Y.S.3d 56 ; OneWest Bank, FSB v. Galloway, 148 A.D.3d at 819, 49 N.Y.S.3d 484 ). Here, the defendant presented no excuse for her default in answering the complaint. Accordingly, the Supreme Court properly denied the defendant's cross motion pursuant to CPLR 5015(a)(3) to vacate the order dated October 5, 2015, and to dismiss the complaint insofar as asserted against her (see Wells Fargo Bank, N.A. v. Salzmann, 181 A.D.3d at 896–897, 119 N.Y.S.3d 898 ; Wells Fargo Bank, N.A. v. Shatles, 157 A.D.3d at 751, 69 N.Y.S.3d 56 ).
IANNACCI, J.P., RIVERA, WOOTEN and DOWLING, JJ., concur.