Nationscredit Fin. Servs. Corp. v Atherley
2012 NY Slip Op 00759 [91 AD3d 922]
Jnury 31, 2012
Appellate Division, Second Department
As corrected through Wednesday, February 29, 2012


Nationscredit Financial Services Corp., Appellant,
v
PhilipAtherley et al., Respondents, et al., Defendants.

—[*1]Zeichner Ellman & Krause, LLP, New York, N.Y. (Steven S. Rand of counsel), forappellant.

Kenneth S. Pelsinger, P.C., Levittown, N.Y., for respondents.

In an action to foreclose a mortgage, the plaintiff appeals from an order of the SupremeCourt, Nassau County (Adams, J.), entered December 14, 2010, which granted those branches ofthe motion of the defendant Philip Atherley which were to vacate the judgment of foreclosureand sale entered on that defendant's default in answering the complaint, and to dismiss thecomplaint pursuant to CPLR 3211 (a) (3), (7) and (8).

Ordered that the order is modified, on the law, by deleting the provision thereof granting thatbranch of the motion of the defendant Philip Atherley which was to dismiss the complaintpursuant to CPLR 3211 (a) (3), (7) and (8), and substituting therefor a provision denying thatbranch of the motion; as modified, the order is affirmed, without costs or disbursements.

Under the unique circumstances of this case, and given the unresolved questions as to thevalidity of the subject mortgage, the defendant Philip Atherley (hereinafter the defendant) wasentitled to vacatur of the judgment of foreclosure and sale entered on his default "in the interestsof substantial justice" (Goldman vCotter, 10 AD3d 289, 293 [2004]; see Woodson v Mendon Leasing Corp., 100NY2d 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 towhether the mortgage was fraudulently procured. However, the defendant failed to establish hisentitlement 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 vNeuman, 80 AD3d 748 [2011]).

The plaintiff's remaining contentions are without merit or need not be reached in light of ourdetermination. Florio, J.P., Belen, Roman and Sgroi, JJ., concur.


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