| Mortgage Elec. Registration Sys., Inc. v Dort-Relus |
| 2013 NY Slip Op 04583 [107 AD3d 861] |
| June 19, 2013 |
| Appellate Division, Second Department |
| Mortgage Electronic Registration Systems, Inc.,Appellant, v Emile Dort-Relus et al., Defendants. Vincent T. Longobardi,Nonparty Respondent. |
—[*1] Stern & Stern, Brooklyn, N.Y. (Lawrence M. Stern and Pamela E. Smith of counsel),for nonparty respondent.
In an action to foreclose a mortgage, the plaintiff appeals from an order of theSupreme Court, Kings County (Rothenberg, J.), dated November 3, 2011, which grantedthe motion of nonparty Vincent T. Longobardi to vacate a judgment of foreclosure andsale and set aside the sale of the property.
Ordered that the order is reversed, on the law, with costs, the motion is denied, andthe judgment of foreclosure and the sale are reinstated.
The plaintiff commenced the instant action in January 2006 seeking to forecloseupon a mortgage obligation. Upon the plaintiff's motion following the defendants' failureto answer or appear, the Supreme Court, Kings County, issued a default judgment offoreclosure and sale on November 15, 2006. On March 26, 2007, nonparty Vincent T.Longobardi acquired a one-third interest in the property from the defendant Paul Lively,also known as Jean Lively. On October 16, 2008, the plaintiff acquired title to theproperty by placing the highest bid at a foreclosure sale. On January 20, 2011,Longobardi moved to vacate the judgment of foreclosure and sale and set aside the sale,and the Supreme Court granted the motion.
A movant seeking to vacate a default judgment must establish one of the statutorygrounds under CPLR 5015 (a), which include, inter alia, excusable default, newlydiscovered evidence, and fraud, misrepresentation, or other misconduct by an adverseparty (see CPLR 5015 [a]; see also Woodson v Mendon Leasing Corp.,100 NY2d 62, 68 [2003]). In addition, a court may vacate its own judgment "forsufficient reason and in the interests of substantial justice" (Woodson v MendonLeasing Corp., 100 NY2d at 68). It is the movant's burden "to show that the priororder[ ] should be set aside by submission of sufficient evidence supporting the grant ofsuch relief" (Matter ofCommissioner of Social Servs. of Ulster County v Powell, 39 AD3d 946, 948[2007]; see Matter of JeanG.S., 59 AD3d 998, 999 [2009]).
Here, Longobardi failed to meet that burden (see Matter of Jean G.S., 59AD3d at [*2]999; see also Bay Crest Assn., Inc. v Paar, 99 AD3d 744, 746[2012]).
The parties' remaining contentions either are without merit, are based on matterdehors the record, or need not be reached in light of our determination.
Thus, Longobardi's motion to vacate the judgment of foreclosure and sale and setaside the sale should have been denied. Mastro, J.P., Dillon, Dickerson and Austin, JJ.,concur.