First Franklin Financial Corp. v. Forrest

85 A.D.3d 963, 925 N.Y.S.2d 882

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 21, 2011
• Status: Published

Opinion

In an action to foreclose a mortgage, the defendant appeals from an order of the Supreme Court, Nassau County (Adams, J.), entered June 29, 2010, which denied her motion, in effect, to vacate a judgment of foreclosure and sale of the same court (Martin, J.), entered January 16, 2009, which was entered upon her default in answering the complaint.

Ordered that the order is affirmed, with costs.

Under the circumstances of this case, the defendant has failed to demonstrate that the invocation of a court’s inherent power to vacate a judgment in the interest of substantial justice is warranted (see Woodson v Mendon Leasing Corp., 100 NY2d 62 [2003]; U.S. Bank N.A. v Slavinski, 78 AD3d 1167, 1168 [2010]; Katz v Marra, 74 AD3d 888, 891 [2010]).

The defendant’s contention that the plaintiff waived any objection to the late service of her answer on the ground that the plaintiff did not reject the answer within the statutory time frame (see CPLR 2101 [f]; Celleri v Pabon, 299 AD2d 385 [2002]) is improperly raised for the first time on appeal, and, thus, is not properly before this Court.

The plaintiffs remaining contention is without merit. Dillon, J.P., Leventhal, Hall and Lott, JJ., concur.