Fischman v. Gilmore

Appellate Division of the Supreme Court of New York

Fischman v. Gilmore

246 A.D.2d 508, 666 N.Y.S.2d 942, 1998 N.Y. App. Div. LEXIS 141

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

DecidedJanuary 12, 1998

StatusPublished

Cited by10 cases

This text of 246 A.D.2d 508 (Fischman v. Gilmore) 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

Fischman v. Gilmore, 246 A.D.2d 508, 666 N.Y.S.2d 942, 1998 N.Y. App. Div. LEXIS 141 (N.Y. Ct. App. 1998).

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Opinion

In an action, inter alia, to foreclose a mortgage, the defendant Maggie Gilmore appeals from an order of the Supreme Court, Queens County (Berke, J.), dated November 21, 1996, which denied her motion pursuant to CPLR 5015 (a) (3) to vacate a judgment of default entered upon her failure to answer the complaint.

Ordered that the order is affirmed, without costs or disbursements.

In this mortgage foreclosure action, the appellant moved to vacate a judgment of default entered against her based upon “fraud, misrepresentation, or other misconduct of an adverse party” (CPLR 5015 [a] [3]). The appellant alleged that the plaintiffs had obtained the underlying judgment of default through “intrinsic fraud” (Morel v Clacherty, 186 AD2d 638, 639), rather than through “extrinsic fraud” (Shaw v Shaw, 97 AD2d 403). Therefore, she was required, inter alia, to show a reasonable excuse for her default (see, Morel v Clacherty, supra; Berardo v Berardo, 205 AD2d 1036). Having failed to do so, the court properly denied the appellant’s motion to vacate her default (Morel v Clacherty, supra; Berardo v Berardo, supra). Rosenblatt, J. P., O’Brien, Thompson, Friedmann and Goldstein, JJ., concur.

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In an action, inter alia, to foreclose a mortgage, the defendant Maggie Gilmore appeals from an order of the Supreme Court, Queens County (Berke, J.), dated November 21, 1996, which denied her motion pursuant to CPLR 5015 (a) (3) to vacate a judgment of default entered upon her failure to answer the complaint.

Ordered that the order is affirmed, without costs or disbursements.

In this mortgage foreclosure action, the appellant moved to vacate a judgment of default entered against her based upon “fraud, misrepresentation, or other misconduct of an adverse party” (CPLR 5015 [a] [3]). The appellant alleged that the plaintiffs had obtained the underlying judgment of default through “intrinsic fraud” (Morel v Clacherty, 186 AD2d 638, 639), rather than through “extrinsic fraud” (Shaw v Shaw, 97 AD2d 403). Therefore, she was required, inter alia, to show a reasonable excuse for her default (see, Morel v Clacherty, supra; Berardo v Berardo, 205 AD2d 1036). Having failed to do so, the court properly denied the appellant’s motion to vacate her default (Morel v Clacherty, supra; Berardo v Berardo, supra). Rosenblatt, J. P., O’Brien, Thompson, Friedmann and Goldstein, JJ., concur.

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Bluebook (online)

246 A.D.2d 508, 666 N.Y.S.2d 942, 1998 N.Y. App. Div. LEXIS 141, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fischman-v-gilmore-nyappdiv-1998.

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