Bank of New York v. Tobing

Appellate Division of the Supreme Court of New York

Bank of New York v. Tobing

2017 NY Slip Op 7583, 155 A.D.3d 596, 63 N.Y.S.3d 106

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

DecidedNovember 1, 2017

Docket2015-11278

StatusPublished

Cited by5 cases

This text of 2017 NY Slip Op 7583 (Bank of New York v. Tobing) 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. Tobing, 2017 NY Slip Op 7583, 155 A.D.3d 596, 63 N.Y.S.3d 106 (N.Y. Ct. App. 2017).

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Opinion

Appeal from an order of the Supreme Court, Richmond County (Thomas R Aliotta, J.), dated July 31, 2015. The order denied the motion of the defendants Richard Tobing and Sylvia Tobing pursuant to CPLR 5015 (a) (2) to vacate an order of reference and a judgment of foreclosure and sale of that court, entered October 1, 2008, and February 18, 2009, respectively.

Ordered that the order dated July 31, 2015, is affirmed, with costs.

In 2008, the plaintiff commenced this action to foreclose a mortgage. The defendants Richard Tobing and Sylvia Tobing (hereinafter together the defendants) defaulted in the action, and the Supreme Court issued an order of reference. In February 2009, a judgment of foreclosure and sale was entered, but, for various reasons, a sale was never completed. In March 2015, the defendants moved pursuant to CPLR 5015 (a) (2) to vacate the order of reference and the judgment of foreclosure of sale on the basis of newly discovered evidence. The court denied the motion, and the defendants appeal.

Contrary to the defendants’ contention, an attorney affirmation that was filed pursuant to Administrative Orders AO/548/ 10, AO/431/11, and AO/208/13 of the Chief Administrative Judge of the Courts was not newly discovered evidence within the meaning of CPLR 5015 (a) (2) because it was not in existence when the Supreme Court issued the order of reference and the judgment of foreclosure and sale (see U.S. Bank, N.A. v Peters, 127 AD3d 742, 743 [2015]; Chase Home Fin., LLC v Quinn, 101 AD3d 793, 793 [2012]). In any event, the affirmation is not substantive evidence itself (see Bank of N.Y. Mellon v Izmirligil, 144 AD3d 1063, 1066 [2016]; LaSalle Bank, NA v Pace, 100 AD3d 970, 971 [2012]), and the defendants failed to establish that its submission would have produced a different result (see CPLR 5015 [a] [2]; Wells Fargo Bank, N.A. v Watanabe, 136 AD3d 1413, 1414-1415 [2016]). Accordingly, the court properly denied the defendants’ motion pursuant to CPLR 5015 (a) (2) to vacate the order of reference and the judgment of foreclosure and sale.

Dillon, J.P., Balkin, Hall and LaSalle, JJ., concur.

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Appeal from an order of the Supreme Court, Richmond County (Thomas R Aliotta, J.), dated July 31, 2015. The order denied the motion of the defendants Richard Tobing and Sylvia Tobing pursuant to CPLR 5015 (a) (2) to vacate an order of reference and a judgment of foreclosure and sale of that court, entered October 1, 2008, and February 18, 2009, respectively.

Ordered that the order dated July 31, 2015, is affirmed, with costs.

In 2008, the plaintiff commenced this action to foreclose a mortgage. The defendants Richard Tobing and Sylvia Tobing (hereinafter together the defendants) defaulted in the action, and the Supreme Court issued an order of reference. In February 2009, a judgment of foreclosure and sale was entered, but, for various reasons, a sale was never completed. In March 2015, the defendants moved pursuant to CPLR 5015 (a) (2) to vacate the order of reference and the judgment of foreclosure of sale on the basis of newly discovered evidence. The court denied the motion, and the defendants appeal.

Contrary to the defendants’ contention, an attorney affirmation that was filed pursuant to Administrative Orders AO/548/ 10, AO/431/11, and AO/208/13 of the Chief Administrative Judge of the Courts was not newly discovered evidence within the meaning of CPLR 5015 (a) (2) because it was not in existence when the Supreme Court issued the order of reference and the judgment of foreclosure and sale (see U.S. Bank, N.A. v Peters, 127 AD3d 742, 743 [2015]; Chase Home Fin., LLC v Quinn, 101 AD3d 793, 793 [2012]). In any event, the affirmation is not substantive evidence itself (see Bank of N.Y. Mellon v Izmirligil, 144 AD3d 1063, 1066 [2016]; LaSalle Bank, NA v Pace, 100 AD3d 970, 971 [2012]), and the defendants failed to establish that its submission would have produced a different result (see CPLR 5015 [a] [2]; Wells Fargo Bank, N.A. v Watanabe, 136 AD3d 1413, 1414-1415 [2016]). Accordingly, the court properly denied the defendants’ motion pursuant to CPLR 5015 (a) (2) to vacate the order of reference and the judgment of foreclosure and sale.

Dillon, J.P., Balkin, Hall and LaSalle, JJ., concur.

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Bluebook (online)

2017 NY Slip Op 7583, 155 A.D.3d 596, 63 N.Y.S.3d 106, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bank-of-new-york-v-tobing-nyappdiv-2017.

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