Opinion
2018–03788 Index No. 12981/12
09-11-2019
U.S. BANK NATIONAL ASSOCIATION, etc., Respondent, v. Neville M. PERSAUD, et al., Appellants.
David A. Bythewood, Mineola, NY, for appellants. Rosicki, Rosicki & Associates, P.C., Plainview, N.Y. (Edward Rugino of counsel), for respondent.
David A. Bythewood, Mineola, NY, for appellants.
Rosicki, Rosicki & Associates, P.C., Plainview, N.Y. (Edward Rugino of counsel), for respondent.
ALAN D. SCHEINKMAN, P.J., JEFFREY A. COHEN, JOSEPH J. MALTESE, HECTOR D. LASALLE, JJ.
DECISION & ORDER ORDERED that the order dated January 5, 2018, is affirmed, with costs.
In 2012, the plaintiff commenced this action to foreclose a mortgage against Neville M. Persaud (hereinafter Neville), "John Does," and "Jane Does." Neville answered the complaint and asserted, inter alia, an affirmative defense that the plaintiff lacked standing. The plaintiff subsequently moved, inter alia, for summary judgment on the complaint insofar as asserted against Neville, to strike Neville's answer, to appoint a referee to determine the amount due, and to amend the caption to substitute Routie Persaud (hereinafter Routie, and together with Neville, the defendants) in place of "John Does" and "Jane Does." Neville opposed the plaintiff's motion and cross-moved for summary judgment dismissing the complaint insofar as asserted against him. By order dated October 5, 2016, the Supreme Court granted the plaintiff's motion and denied Neville's cross motion. The plaintiff subsequently moved for a judgment of foreclosure and sale. In a judgment of foreclosure and sale entered April 7, 2017, the court, inter alia, directed the sale of the subject premises.
On or about August 16, 2017, the defendants moved pursuant to CPLR 5015(a)(3) to vacate the order dated October 5, 2016, and the judgment of foreclosure and sale. The defendants argued, among other things, that the plaintiff committed fraud by submitting fraudulent documents in support of its motion, inter alia, for summary judgment on the complaint. By order dated January 5, 2018, the Supreme Court denied the defendants' motion. The defendants appeal.
CPLR 5015(a)(3) permits a court to relieve a party from an order or judgment on the ground of "fraud, misrepresentation, or other misconduct of an adverse party." The defendants' contention that the plaintiff obtained the order dated October 5, 2016, and the judgment of foreclosure and sale through the submission of fraudulent documents amounts to an allegation of intrinsic fraud (see U.S. Bank, N.A. v. Robinson , 168 A.D.3d 1120, 1121, 93 N.Y.S.3d 87 ; Chase Manhattan Bank v. Nath , 162 A.D.3d 975, 977, 80 N.Y.S.3d 158 ). Where a defendant seeks to vacate a default pursuant to CPLR 5015(a)(3) based on intrinsic fraud, he or she must establish a reasonable excuse for the default and a potentially meritorious defense to the action (see U.S. Bank, N.A. v. Robinson , 168 A.D.3d at 1121, 93 N.Y.S.3d 87 ; Wells Fargo Bank, N.A. v. Shatles , 157 A.D.3d 750, 751, 69 N.Y.S.3d 56 ).
Here, the defendants failed to offer any excuse for Routie's default in appearing or answering the complaint, or their default in opposing the plaintiff's motion for a judgment of foreclosure and sale (see Wells Fargo Bank, N.A. v. Shatles , 157 A.D.3d at 751, 69 N.Y.S.3d 56 ; Wells Fargo Bank Minn., N.A. v. Coletta , 153 A.D.3d 756, 757, 59 N.Y.S.3d 788 ; EMC Mtge. Corp. v. Toussaint , 136 A.D.3d 861, 863, 25 N.Y.S.3d 312 ). Furthermore, the defendants failed to meet their burden of establishing fraud, misrepresentation, or other misconduct on the part of the plaintiff that would warrant vacatur of the order dated October 5, 2016, and the judgment of foreclosure and sale pursuant to CPLR 5015(a)(3) (see Deutsche Bank Natl. Trust Co. v. Conway , 169 A.D.3d 641, 642, 91 N.Y.S.3d 723 ; Wells Fargo Bank, N.A. v. Graffioli , 167 A.D.3d 969, 972, 90 N.Y.S.3d 224 ; Bank of N.Y. Mellon Trust Co., N.A. v. Sukhu , 163 A.D.3d 748, 751, 83 N.Y.S.3d 70 ; LaSalle Bank N.A. v. Oberstein , 146 A.D.3d 945, 945, 45 N.Y.S.3d 538 ). Accordingly, we agree with the Supreme Court's determination denying the defendants' motion.
SCHEINKMAN, P.J., COHEN, MALTESE and LASALLE, JJ., concur.