Central Funding Co. v. Kimler

54 A.D.2d 748, 387 N.Y.S.2d 892, 1976 N.Y. App. Div. LEXIS 14395

Opinion

In a mortgage foreclosure action, plaintiff appeals from an order of the Supreme Court, Orange County, dated August 1, 1975, which granted defendant’s motion to vacate and set aside a judgment of the same court, entered in plaintiff’s favor, upon an order granting plaintiff’s motion for summary judgment. Order reversed, with $50 costs and disbursements, and defendant’s motion denied. The moving papers fail to allege fraud in the procurement of the judgment (see CPLR 5015, subd [a], par 3; Crouse v McVickar, 207 NY 213, 218; Mayor of City of N.Y.v Brady, 115 NY 599, 614-615; 9 Carmody-Wait 2d, § 63:164). Moreover, the so-called newly discovered evidence purportedly establishing fraud was readily obtainable at the time the action was commenced and should have been interposed in opposition to the motion for summary judgment (see CPLR 3018, subd [b]; Mully v Drayn, 51 AD2d 660; 755 Seventh Ave. Corp. v Carroll, 266 NY 157, 162). Defendant should not, at this late date, and after the property has been sold to a bona fide purchaser without notice, be permitted to raise "a 'newly discovered theory’ of defense” (see Merritt v Merritt, 259 App Div 242, 244-245; see, also, Matter of Alexandroff, 183 Misc 95, 99). Gulotta, P. J., Hopkins, Latham, Shapiro and Hawkins, JJ., concur.