Bank of New York v. Agenor

Appellate Division of the Supreme Court of New York

Bank of New York v. Agenor

305 A.D.2d 438, 758 N.Y.S.2d 817

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 12, 2003

StatusPublished

Cited by8 cases

This text of 305 A.D.2d 438 (Bank of New York v. Agenor) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bank of New York v. Agenor, 305 A.D.2d 438, 758 N.Y.S.2d 817 (N.Y. Ct. App. 2003).

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Opinion

—In an action to foreclose a mortgage, the defendant Marie R. Agenor appeals from an order of the Supreme Court, Nassau County (Davis, J.), dated August 9, 2002, which denied her motion, inter alia, to vacate a judgment of foreclosure and sale dated November 8, 2001, entered upon her failure to appear or answer the complaint.

Ordered that the order is affirmed, with costs.

To vacate the judgment rendered upon the appellant’s failure to appear or answer the complaint, she was required to demonstrate a reasonable excuse for her default and a meritorious defense (see Chemical Bank v Vazquez, 234 AD2d 253 [1996]). The appellant did neither. The appellant’s assertion that she hoped to be able to arrange for a more advantageous third-party sale to obviate foreclosure is not a defense (see Nassau Trust Co. v Montrose Concrete Prods. Corp., 56 NY2d 175, 183 [1982]; 2 Bergman, New York Mortgage Foreclosures § 22.32).

Moreover, having defaulted in appearing, the appellant was not entitled to personal notice of the sale (see RPAPL 231; Colombi v RWL Constr. Corp., 278 AD2d 191 [2000]). In any event, the appellant clearly had actual notice of the sale, which she sought to stay by making the instant motion.

The appellant’s remaining contentions are without merit. S. Miller, J.P., Krausman, Luciano and Mastro, JJ., concur.

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—In an action to foreclose a mortgage, the defendant Marie R. Agenor appeals from an order of the Supreme Court, Nassau County (Davis, J.), dated August 9, 2002, which denied her motion, inter alia, to vacate a judgment of foreclosure and sale dated November 8, 2001, entered upon her failure to appear or answer the complaint.

Ordered that the order is affirmed, with costs.

To vacate the judgment rendered upon the appellant’s failure to appear or answer the complaint, she was required to demonstrate a reasonable excuse for her default and a meritorious defense (see Chemical Bank v Vazquez, 234 AD2d 253 [1996]). The appellant did neither. The appellant’s assertion that she hoped to be able to arrange for a more advantageous third-party sale to obviate foreclosure is not a defense (see Nassau Trust Co. v Montrose Concrete Prods. Corp., 56 NY2d 175, 183 [1982]; 2 Bergman, New York Mortgage Foreclosures § 22.32).

Moreover, having defaulted in appearing, the appellant was not entitled to personal notice of the sale (see RPAPL 231; Colombi v RWL Constr. Corp., 278 AD2d 191 [2000]). In any event, the appellant clearly had actual notice of the sale, which she sought to stay by making the instant motion.

The appellant’s remaining contentions are without merit. S. Miller, J.P., Krausman, Luciano and Mastro, JJ., concur.

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Bluebook (online)

305 A.D.2d 438, 758 N.Y.S.2d 817, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bank-of-new-york-v-agenor-nyappdiv-2003.

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