| Indymac Bank, F.S.B. v Yano-Horoski |
| 2013 NY Slip Op 03971 [107 AD3d 672] |
| June 5, 2013 |
| Appellate Division, Second Department |
| Indymac Bank, F.S.B., Respondent, v Diana J.Yano-Horoski, Appellant, et al., Defendants. |
—[*1] Paul, Weiss, Rifkind, Wharton & Garrison, LLP, New York, N.Y. (Allan J. Arffa,Robyn F. Tarnofsky, and Moira Kim Penza of counsel), for respondent.
In an action to foreclose a mortgage, the defendant Diana J. Yano-Horoski appealsfrom so much of an order of the Supreme Court, Suffolk County (Garguilo, J.), datedFebruary 6, 2012, as denied her motion, inter alia, pursuant to CPLR 317 and 5015 (a)(3) to vacate a judgment of foreclosure and sale of the same court (McNulty, J.), datedJanuary 12, 2009, entered upon her default in appearing or answering the complaint.
Ordered that the order is affirmed insofar as appealed from, with costs.
The defendant was not entitled to vacatur of the judgment of foreclosure and salepursuant to CPLR 317, since she failed to demonstrate that she did not receive notice ofthis action in time to defend it (see Bank of N.Y. v Espejo, 92 AD3d 707, 709 [2012]; Deutsche Bank Natl. Trust Co. vMatos, 77 AD3d 606, 607 [2010]). In addition, the defendant was not entitled tovacatur pursuant to CPLR 5015 (a) (3). Under the circumstances of this case, thedefendant failed to move for relief pursuant to CPLR 5015 (a) (3) within a reasonabletime after entry of the judgment (see Bank of N.Y. v Stradford, 55 AD3d 765, 765 [2008];Rizzo v St. LawrenceUniv., 24 AD3d 983, 984 [2005]). In any event, her claims of fraud areunsupported by the record (see Bank of N.Y. v Stradford, 55 AD3d at 766; Aames Capital Corp. vDavidsohn, 24 AD3d 474, 475 [2005]).
In light of our determination, we need not address the parties' remaining contentions.Skelos, J.P., Angiolillo, Dickerson and Roman, JJ., concur.