Onewest Bank, FSB v. Martinez

101 A.D.3d 969, 955 N.Y.2d 532

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 19, 2012
• Status: Published

Opinion

The Supreme Court properly denied the appellants’ motion pursuant to CELR 5015, in effect, inter alia, to vacate a judgment of foreclosure and sale of the same court entered August 16, 2010, upon their default in appearing or answering the complaint, to set aside the foreclosure sale held pursuant thereto, and to vacate the referee’s deed in foreclosure. As to those branches of the appellants’ motion which were pursuant to CPLR 5015 (a) (1), in effect, inter alia, to vacate the judgment of foreclosure and sale, the appellants failed to demonstrate a reasonable excuse for their default (see U.S. Bank N.A. v Slavinski, 78 AD3d 1167, 1167-1168 [2010]; Dorrer v Berry, 37 AD3d 519, 520 [2007]). As to those branches which were pursuant to CPLR 5015 (a) (3), the appellants failed to establish that the plaintiff procured the judgment of foreclosure and sale by fraud, misrepresentation, or other misconduct (see Wells Fargo Bank N.A. v Hornes, 94 AD3d 755, 755 [2012]). Mastro, J.P., Angiolillo, Sgroi and Miller, JJ., concur.