| Pritchard v Curtis |
| 2012 NY Slip Op 09112 [101 AD3d 1502] |
| December 27, 2012 |
| Appellate Division, Third Department |
| Charles Pritchard et al., Respondents, v Darlene A. Curtiset al., Appellants, et al., Defendants. |
—[*1] Ganz, Wolkenbreit & Siegfeld, Albany (Robert E. Ganz of counsel), forrespondents.
McCarthy, J. Appeals (1) from an order of the Supreme Court (Devine, J.), entered August 2,2011 in Schoharie County, which granted defendant Darlene A. Curtis' motion to clarify a priororder, (2) from a judgment of said court, entered August 2, 2011 in Schoharie County, whichgranted plaintiffs' motion to, among other things, confirm a referee's report, and (3) from an orderof said court, entered September 29, 2011 in Schoharie County, which, among other things,denied Darlene A. Curtis' motion to vacate a judgment of foreclosure and sale.
The facts of this case are more fully developed in our decision on a prior appeal (Pritchard v Curtis, 95 AD3d 1379[2012]). As relevant here, defendant Darlene A. Curtis mortgaged two parcels of real property assecurity for two promissory notes. Plaintiffs, the successors in interest to the mortgagee,commenced this action and moved for summary judgment setting aside certain fraudulentconveyances of the property and foreclosing on the mortgages. Supreme Court granted themotion for summary judgment in January 2011. Defendant Donald W. Chichester appealed andthis Court affirmed (id.).
Curtis moved to clarify the January 2011 order. Supreme Court granted the motion andclarified that the order had determined that the mortgages and liens were valid and summary[*2]judgment was granted as to liability on the foreclosure causeof action. Curtis and Chichester (hereinafter collectively referred to as defendants) appeal thatorder. Supreme Court separately granted plaintiffs' motion to confirm the report of the assignedreferee and issued a final judgment of foreclosure and sale. Curtis appeals that judgment. Curtisalso moved to vacate the judgment of foreclosure and sale. Chichester sought the court's recusal.Supreme Court denied the motion to vacate and the request for recusal. Defendants also appealthat order.
In the previous appeal, this Court affirmed Supreme Court's grant of summary judgment onthe issues of fraudulent conveyances and entitlement to a judgment of foreclosure (id. at1380-1381). We see no need to further address Supreme Court's clarification of its order, whichcomports with our understanding of that order as discussed in our prior decision.
Chichester admitted that he has not had an individual ownership interest in the parcels since1999, and he did not sign the promissory notes or the mortgages. Thus, as we noted on theprevious appeal, he has no standing to challenge orders and judgments addressing foreclosure(id. at 1380). To the extent that Chichester may be affected by the denial of his recusalrequest, no legal disqualification existed under Judiciary Law § 14 and, based on SupremeCourt's remote relationship with nonparties who were somewhat involved in this action, the courtdid not abuse its discretion in denying voluntary recusal (see Shields v Carbone, 99 AD3d 1100, 1102-1103 [2012]; Mokay v Mokay, 67 AD3d 1210,1213 [2009]).
Supreme Court did not err in denying Curtis' motion to vacate. A party can seek to vacate ajudgment or order on several grounds, including newly-discovered evidence that probably wouldhave produced a different result, fraud or misconduct by an adverse party and lack of jurisdiction(see CPLR 5015 [a]). A motion to vacate a prior judgment or order is addressed to thecourt's "sound discretion, subject to reversal only where there has been a clear abuse of thatdiscretion" (Maddux v Schur, 53AD3d 738, 739 [2008]; seeSolomon v Solomon, 27 AD3d 988, 989 [2006]). Defendants submitted the opinion of ahandwriting expert that their signatures on a confession of judgment were forged. They did notestablish how this qualified as newly-discovered evidence, as they did not explain why thisopinion could not have been procured in response to the motion for summary judgment a yearearlier (see Maddux v Schur, 53 AD3d at 739; Shouse v Lyons, 4 AD3d 821, 822 [2004]). In any event, the courtheld that this evidence was irrelevant because foreclosure was based on the two notes andmortgages, not on the confession of judgment. That document was only used to prove anancillary fact that was since established by other evidence. Even if that document were forged,that fact could only affect the credibility of someone who submitted an affidavit on plaintiffs'behalf, and new evidence affecting credibility is generally not sufficient to vacate an order(see Solomon v Solomon, 27 AD3d at 989). Hence, the court properly determined thatCurtis was not entitled to vacatur of the prior order based on newly-discovered evidence or fraud(see CPLR 5015 [a] [2], [3]).
Curtis also did not establish entitlement to vacatur based on a lack of jurisdiction (seeCPLR 5015 [a] [4]). Although Curtis did not complain, in response to the original summaryjudgment motion, about plaintiffs' and the court's failure to comply with the newly-enactedrequirements in foreclosure actions, a defect in subject matter jurisdiction may be raised at anytime, even for the first time on appeal, because it relates to the competence of the court toconsider a matter (see Financial Indus.Regulatory Auth., Inc. v Fiero, 10 NY3d 12, 17 [2008]; Matter of Destiny EE. [Karen FF.], 90AD3d 1437, 1439 n 3 [2011], lv dismissed 19 NY3d 856 [2012]; Burke v Aspland, 56 AD3d 1001,1003 [2008], lv denied 12 NY3d 709 [2009]). [*3]Foreclosure settlement conferences are mandated by statute andcourt rule in certain circumstances (see CPLR 3408; 22 NYCRR 202.12-a). We need notdecide whether a mandatory settlement conference was required here,[FN1]because Curtis does not argue—and the law would not support an argument—thatthe failure to hold such a conference deprives the court of subject matter jurisdiction in aforeclosure action.
Courts have held that the notice requirements of RPAPL 1303 and 1304 are conditionsprecedent to suit, with the foreclosing party bearing the burden of showing compliance therewith(see Aurora Loan Servs., LLC vWeisblum, 85 AD3d 95, 102-108 [2011]; First Natl. Bank of Chicago v Silver, 73 AD3d 162, 165-169[2010]); those decisions did not label these conditions precedent as jurisdictional. The Court ofAppeals has "noted the confusion that arises because the word 'jurisdiction', which with respectto subject matter means the power of a court to adjudicate concerning a category of cases, is alsoinexactly used to refer to the situation in which the absence of a condition precedent requiresdismissal of a particular case notwithstanding that the court has jurisdiction of the subject matter"(Copeland v Salomon, 56 NY2d 222, 227 [1982]). While courts have dismissed actionsbased on the failure to comply with a condition precedent related to a statutory notice of claim,such requirements affect subject matter jurisdiction because the municipality or governmentalauthority "waived immunity and consented to be sued only in the event that certain jurisdictionalconditions precedent are complied with" (Lumbermens Mut. Cas. Co. v Port Auth. of N.Y. &N.J., 137 AD2d 796, 797 [1988]; see Ofulue v Port Auth. of N.Y. & N.J., 307 AD2d258, 259 [2003]). The conditions precedent of providing foreclosure notice requirements aredifferent. Statutorily, violation of the provisions of RPAPL 1304 constitutes a defense to a homeloan mortgage foreclosure action (see RPAPL 1302 [2]; Aurora Loan Servs., LLC vWeisblum, 85 AD3d at 105).[FN2]The Legislature would not have denominated this as a defense if a violation of the noticeprovisions deprived the court of subject matter jurisdiction. As the absence of these conditionsprecedent did not deprive the court of jurisdiction to preside over this mortgage foreclosureaction, Supreme Court properly denied Curtis' motion to vacate the judgment of foreclosure andsale.
Mercure, J.P., Spain, Malone Jr. and Stein, JJ., concur. Ordered that the orders and judgmentare affirmed, with costs.
Footnote 1: Plaintiffs persuasively argue thatthe mortgage foreclosure requirements are inapplicable because the mortgages at issue here donot qualify as "home loan[s]" based on evidence, including Curtis' testimony, that the debt wasincurred for use in her business rather than "primarily for personal, family, or householdpurposes" (RPAPL 1304 [5] [a] [ii]). This argument similarly would apply were we to addressthe merits of whether plaintiffs were required to provide notices for home loan foreclosurepursuant to RPAPL 1303 and 1304.
Footnote 2: Curtis did not raise the failure togive notice pursuant to RPAPL 1303 or 1304 as a defense in her answer or in opposition toplaintiffs' motion for summary judgment.