LaSalle National Bank Ass'n v. Odato

126 A.D.3d 675, 2 N.Y.S.3d 360, 2015 NY Slip Op 01785, 2015 N.Y. App. Div. LEXIS 1772

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 4, 2015
• Docket: 2014-03098
• Status: Published

Opinion

In an action to foreclose a mortgage, the defendant Tatiana Odato appeals from an order of the Supreme Court, Queens County (Agate, J.), entered March 4, 2014, which denied her third motion, inter alia, to vacate a judgment of foreclosure and sale of the same court dated April 22, 2009, entered upon her failure to appear or answer the complaint.

Ordered that the order is affirmed, with costs.

In July 2008, the plaintiff commenced the instant mortgage foreclosure action against the appellant, Tatiana Odato, among others. Upon the appellant’s failure to appear or answer the complaint, a judgment of foreclosure and sale was issued on April 22, 2009. After the foreclosure sale was held on June 17, 2009, the appellant moved, inter alia, to vacate the judgment of foreclosure and sale. The motion was denied in an order dated January 11, 2010, from which no appeal was taken. Thereafter, on June 4, 2010, the Supreme Court denied the appellant’s motion for leave to reargue and renew her prior motion. In an order dated August 29, 2011, the court denied the appellant’s second motion, inter alia, to vacate the judgment of foreclosure and sale. The appellant did not appeal from that order. In the order appealed from, which was entered March 4, 2014, the court denied the appellant’s third motion, inter alia, to vacate the judgment of foreclosure and sale.

Contrary to the appellant’s contention, a party, such as the appellant here, is precluded from moving to vacate his or her default on grounds asserted in a prior motion to vacate the default that had been previously denied in an order from which that party took no appeal, or on grounds that were apparent at the time that the party made the prior motion but were not asserted therein (see Eastern Sav. Bank, FSB v Brown, 112 AD3d 668, 670 [2013]; Viva Dev. Corp. v United Humanitarian Relief Fund, 108 AD3d 619, 620 [2013]; JMP Pizza, LLC v 34th St. Pizza, LLC, 104 AD3d 648 [2013]; Lambert v Schreiber, 95 AD3d 1282, 1283 [2012]). Therefore, we need not address the appellant’s remaining contentions. Accordingly, the Supreme Court properly denied the appellant’s third motion, inter alia, to vacate the judgment of foreclosure and sale.

Dillon, J.P., Leventhal, Chambers and Roman, JJ., concur.