| Wells Fargo Bank N.A. v Hornes |
| 2012 NY Slip Op 02486 [94 AD3d 755] |
| April 3, 2012 |
| Appellate Division, Second Department |
| Wells Fargo Bank N.A., Respondent, v Carlos Hornes,Appellant. |
—[*1] Shapiro, DiCaro & Barak, LLC, Rochester, N.Y. (Ellis M. Oster of counsel), forrespondent.
In an action to foreclose a mortgage, the defendant appeals, as limited by his brief, from somuch of an order of the Supreme Court, Suffolk County (Tanenbaum, J.), entered February 10,2011, as denied those branches of his motion which were pursuant to CPLR 5015 to vacate ajudgment of foreclosure and sale of the same court entered March 4, 2009, upon his default inanswering or appearing.
Ordered that the order is affirmed insofar as appealed from, with costs.
The Supreme Court properly denied that branch of the defendant's motion which waspursuant to CPLR 5015 (a) (4) to vacate a judgment of foreclosure and sale. Although thedefendant alleged that he was not served with process in the instant action, it is undisputed thathe filed for bankruptcy and received a discharge after the entry of the judgment of foreclosureand sale. Since the defendant received a favorable result in bankruptcy court, i.e., a dischargefrom personal liability (see Nelson, L.P.v Jannace, 87 AD3d 731 [2011]; Matter of Acquisitions Plus, LLC v Shapiro, 7 AD3d 957 [2004]),to the detriment of the plaintiff, he is judicially estopped from seeking the vacatur of thejudgment of foreclosure and sale based upon lack of jurisdiction (see All Terrain Props. vHoy, 265 AD2d 87 [2000]; see also MJD Constr. v Woodstock Lawn & HomeMaintenance, 293 AD2d 516 [2002]; D & L Holdings v Goldman Co., 287 AD2d 65[2001]).
The Supreme Court also properly denied those branches of the defendant's motion whichwere to vacate the judgment of foreclosure and sale pursuant to CPLR 5015 (a) (1), since hefailed to demonstrate a reasonable excuse for his default (see Stephan B. Gleich & Assoc. v Gritsipis, 87 AD3d 216 [2011]),and pursuant to CPLR 5015 (a) (3), since he failed to establish that the plaintiff procured thejudgment of foreclosure and sale by fraud, misrepresentation, or other misconduct (see Midfirst Bank v Al-Rahman, 81AD3d 797 [2011]; Tribeca LendingCorp. v Crawford, 79 AD3d 1018 [2010]). Balkin, J.P., Eng, Hall and Sgroi, JJ., concur.