| NYCTL 2005-A Trust v 2137-2153 Nostrand Ave. Assoc.,L.P. |
| 2010 NY Slip Op 00238 [69 AD3d 697] |
| January 12, 2010 |
| Appellate Division, Second Department |
| NYCTL 2005-A Trust et al., Respondents, v 2137-2153Nostrand Avenue Associates, L.P., Respondent-Appellant, et al., Defendants. BHNWNNostrand, LLC, Nonparty Appellant-Respondent. |
—[*1] Alonso, Andalkar & Kahn, P.C., New York, N.Y. (Mark J. Alonso and Catania Facher ofcounsel; Chad Gottlieb on the brief), for defendant-respondent-appellant.
In an action to foreclose a tax lien, BHNWN Nostrand, LLC, the nonparty successful bidderat the foreclosure sale, appeals, as limited by its brief, from so much of an order of the SupremeCourt, Kings County (Schmidt, J.), dated December 16, 2008, as granted, in the interest ofjustice, those branches of the motion of the defendant 2137-2153 Nostrand Avenue Associates,L.P., which were to vacate the judgment of foreclosure, set aside the foreclosure sale, and cancelthe notice of pendency, and the defendant 2137-2153 Nostrand Avenue Associates, L.P.,cross-appeals, as limited by its brief, from so much of the same order as determined that vacaturwas not warranted pursuant to CPLR 317 and 5015 (a) (1).
Ordered that the cross appeal is dismissed, as the defendant 2137-2153 Nostrand AvenueAssociates, L.P., is not aggrieved by the portion of the order cross-appealed from (seeCPLR 5511); and it is further,
Ordered that the order is reversed insofar as appealed from, on the facts and in exercise ofdiscretion, and those branches of the motion of the defendant 2137-2153 Nostrand AvenueAssociates, L.P., which were to vacate the judgment of foreclosure, set aside the foreclosure sale,and cancel the notice of pendency are denied; and it is further,
Ordered that one bill of costs is awarded to BHNWN Nostrand, LLC, payable by thedefendant-respondent-appellant.
In 2005, the defendant 2137-2153 Nostrand Avenue Associates, L.P. (hereinafter Nostrand),failed to pay certain utility bills for 2137 Nostrand Avenue (hereinafter the property), acommercial building in Brooklyn which it owned. The plaintiffs purchased a tax lien on theproperty, and [*2]obtained a judgment of foreclosure and sale in2007, upon Nostrand's default. An auction was held in June 2008, and the nonparty BHNWNNostrand, LLC (hereinafter BHNWN), placed the successful bid in the sum of $4,205,000.
In July 2008, before the deed could be delivered to BHNWN, Nostrand moved, inter alia, tovacate the judgment of foreclosure, set aside the foreclosure sale, and cancel the notice ofpendency. Its representative averred that Nostrand never received notice at any stage of theproceedings because papers were mailed to incorrect addresses, and that it would haveimmediately paid the outstanding utility bills had it been aware of them. The Supreme Courtdetermined that Nostrand failed to satisfy the statutory prerequisites for vacatur. Nevertheless,relying solely on its equitable powers, the Supreme Court granted the motion in the interest ofjustice.
On appeal, BHNWN contends that the Supreme Court erred in vacating the default judgmentin the interest of justice. Additionally, Nostrand seeks to cross-appeal from the Supreme Court'sdetermination that it failed to satisfy certain statutory requirements for vacatur. AlthoughNostrand's cross-appeal must be dismissed on the ground that it is not aggrieved by the ordercross-appealed from, the contentions raised by Nostrand in support of vacatur under CPLR 317and 5015 (a) (1) can be considered as alternative grounds for affirmance (see Parochial BusSys. v Board of Educ. of City of N.Y., 60 NY2d 539, 545-546 [1983]; Lauer v Great S.Bay Seafood Co., 299 AD2d 325, 327 [2002]).
The Supreme Court improvidently exercised its discretion in vacating the default judgmenton equitable grounds, as the equities do not favor Nostrand (see Norwest Mtge., Inc. v Brown, 35 AD3d 682, 684 [2006]; Citibank, N.A. v Grant, 21 AD3d924, 925 [2005]; see also Long Is. Sav. Bank of Centereach v Jean Valiquette, M.D.,P.C., 183 AD2d 877, 877-878 [1992]).
The court providently exercised its discretion in declining to vacate the default judgment onstatutory grounds. Nostrand lacked a reasonable excuse for its delay in appearing, as required forvacatur pursuant to CPLR 5015 (a) (1) (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co.,67 NY2d 138, 141 [1986]; Santiago v Sansue Realty Corp., 243 AD2d 622, 623[1997]; FGB Realty Advisors v Norm-Rick Realty Corp., 227 AD2d 439 [1996];Paul Conte Cadillac v C.A.R.S. Purch. Serv., 126 AD2d 621, 622 [1987]). Additionally,Nostrand lacked a meritorious defense to the foreclosure action, as required for vacatur underboth CPLR 5015 (a) (1) and 317 (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co.,67 NY2d at 141; Santiago v Sansue Realty Corp., 243 AD2d at 623).
BHNWN's remaining arguments are either without merit or improperly raised for the firsttime in its reply brief (see Morgan v New York City Hous. Auth., 255 AD2d 565[1998]). Prudenti, P.J., Covello, Lott and Sgroi, JJ., concur.