| New Century Mtge. Corp. v Corriette |
| 2014 NY Slip Op 03811 [117 AD3d 1011] |
| May 28, 2014 |
| Appellate Division, Second Department |
[*1]
| New Century Mortgage Corporation,Respondent, v Brian Corriette, Appellant, et al.,Defendants. |
Steven Alexander Biolsi, Forest Hills, N.Y., for appellant.
Hogan Lovells US LLP, New York, N.Y. (David Dunn, Chava Brandriss, andHeather R. Gushue of counsel), for respondent.
In an action to foreclose a mortgage, the defendant Brian Corriette appeals, as limitedby his brief, from so much of an order of the Supreme Court, Queens County (Greco, Jr.,J.), entered February 7, 2013, as denied those branches of his motion which were tovacate a judgment of foreclosure and sale entered December 26, 2008, and a referee'sdeed, pursuant to CPLR 5015 (a) (3), and extend his time to answer the complaintpursuant to CPLR 3012 (d).
Ordered that the order is affirmed insofar as appealed from, with costs.
Almost two years after the defendant Brian Corriette's property was sold at auction,he moved, among other things, to set aside the referee's deed, vacate the judgment offoreclosure and sale, and extend his time to answer the complaint (see CPLR3012 [d]; 5015 [a] [3]). The Supreme Court denied those branches of the motion.
Corriette contends that the plaintiff obtained a judgment against him by makingfraudulent allegations in the complaint about its legal existence and standing tocommence the action. These claims amount to allegations of intrinsic fraud (see Bank of N.Y. v Stradford,55 AD3d 765, 765 [2008]; Bank of N.Y. v Lagakos, 27 AD3d 678, 679 [2006]). Adefendant seeking to vacate a default pursuant to CPLR 5015 (a) (3) based on intrinsicfraud must establish both a reasonable excuse for the default and a potentiallymeritorious defense to the action (see Bank of N.Y. v Stradford, 55 AD3d at765-766; Morel v Clacherty, 186 AD2d 638, 639 [1992]). Here, Corrietteproffered no excuse for his default in the action. Accordingly, we need not addresswhether he has a potentially meritorious defense to the action (see TD Bank, N.A. v Spector,114 AD3d 933, 934 [2014]; Citimortgage, Inc. v Bustamante, 107 AD3d 752, 753[2013]).
Therefore, the Supreme Court did not improvidently exercise its discretion bydenying those branches of Corriette's motion which were pursuant to CPLR 3012 (d) and5015 (a) (3) to vacate the judgment of foreclosure and sale and a referee's deed, and toextend his time to answer the complaint (see Citimortgage, Inc. v Bustamante,107 AD3d at 753; HSBC BankUSA, N.A. v Ashley, 104 AD3d 975, 976 [2013]).
[*2] Corriette's remaining contention need not be addressedin light of our determination. Balkin, J.P., Dickerson, Chambers and Hall, JJ.,concur.