| Onewest Bank, FSB v Martinez |
| 2012 NY Slip Op 08705 [101 AD3d 969] |
| December 19, 2012 |
| Appellate Division, Second Department |
| Onewest Bank, FSB, Respondent, v Dina Martinez et al.,Appellants, et al., Defendants. |
—[*1] Fein, Such & Crane, LLP, Chestnut Ridge, N.Y. (Michael S. Hanusek of counsel), forrespondent.
In an action to foreclose a mortgage, the defendants Dina Martinez and Alnulfo Martinezappeal from an order of the Supreme Court, Suffolk County (Pastoressa, J.), dated July 5, 2011,which denied their motion pursuant to CPLR 5015, in effect, inter alia, to vacate a judgment offoreclosure and sale of the same court entered August 16, 2010, upon their default in appearingor answering the complaint, to set aside the foreclosure sale held pursuant thereto, and to vacatethe referee's deed in foreclosure.
Ordered that the order is affirmed, with costs.
The Supreme Court properly denied the appellants' motion pursuant to CPLR 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 saleheld pursuant thereto, and to vacate the referee's deed in foreclosure. As to those branches of theappellants' motion which were pursuant to CPLR 5015 (a) (1), in effect, inter alia, to vacate thejudgment of foreclosure and sale, the appellants failed to demonstrate a reasonable excuse fortheir default (see U.S. Bank N.A. vSlavinski, 78 AD3d 1167, 1167-1168 [2010]; Dorrer v Berry, 37 AD3d 519, 520 [2007]). As to those brancheswhich were pursuant to CPLR 5015 (a) (3), the appellants failed to establish that the plaintiffprocured the judgment of foreclosure and sale by fraud, misrepresentation, or other misconduct(see Wells Fargo Bank N.A. vHornes, 94 AD3d 755, 755 [2012]). Mastro, J.P., Angiolillo, Sgroi and Miller, JJ.,concur.