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

Appellate Division of the Supreme Court of the State of New York·Decided May 12, 2003·Published·Cited by 8 cases

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.

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

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