Nationscredit Financial Services Corp. v. Atherley

91 A.D.3d 922, 937 N.Y.2d 603

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 31, 2012
• Status: Published

Opinion

Under the unique circumstances of this case, and given the unresolved questions as to the validity of the subject mortgage, the defendant Philip Atherley (hereinafter the defendant) was entitled to vacatur of the judgment of foreclosure and sale entered on his default “in the interests of substantial justice” (Goldman v Cotter, 10 AD3d 289, 293 [2004]; see Woodson v Mendon Leasing Corp., 100 NY2d 62, 68 [2003]; Ladd v Stevenson, 112 NY 325, 332 [1889]; Katz v Marra, 74 AD3d 888 [2010]). In particular, we note that the documentary evidence raises significant issues as to whether the mortgage was fraudulently procured. However, the defendant failed to establish his entitlement to dismissal of the complaint under any of the CPLR 3211 (a) grounds he asserted (see CPLR 3211 [a] [3], [7], [8]; see generally Leon v Martinez, 84 NY2d 83 [1994]; Tikvah Enters., LLC v Neuman, 80 AD3d 748 [2011]).

The plaintiffs remaining contentions are without merit or need not be reached in light of our determination. Florio, J.E, Belen, Roman and Sgroi, JJ., concur.