| Washington Mut. Bank v Wade |
| 2014 NY Slip Op 05534 [119 AD3d 930] |
| July 30, 2014 |
| Appellate Division, Second Department |
[*1]
| 1 Washington Mutual Bank, Formerly Known asWashington Mutual Bank FA, Successor by Merger to the Dime Savings Bank of NewYork, FSB, Respondent, v Vernon Wade et al., Defendants, and KathrynWestbrooks, Appellant. |
Bradley B. Davis, Massapequa, N.Y., for appellant.
Cullen and Dykman LLP, Garden City, N.Y. (Erin M. Tregarthen and MarianneMcCarthy of counsel), for respondent.
In an action to foreclose a mortgage, the defendant Kathryn Westbrooks appeals (1),as limited by her notice of appeal and brief, from so much of an order of the SupremeCourt, Nassau County (Adams, J.), entered December 6, 2011, as, upon, in effect,reargument, adhered to a determination in an order of the same court entered March 14,2011, denying her motion, made jointly with the defendant Vernon Wade, inter alia, todismiss the complaint pursuant to CPLR 3211 (a), and denying her separate motion,among other things, in effect, pursuant to CPLR 5015 (a) (3) to vacate a judgment offoreclosure and sale of the same court (Brennan, J.), entered September 1, 2006, uponher failure to appear or answer the complaint, (2) from so much of an order of the samecourt (Adams, J.), entered February 16, 2012, as denied that branch of her motion whichwas for leave to renew her prior motions, which were denied in the order enteredDecember 6, 2011, and (3) from an order of the same court (Adams, J.), entered August7, 2012, which denied her motion, inter alia, pursuant to CPLR 5015 (a) (2) and (3) tovacate the judgment of foreclosure and sale.
Ordered that the orders entered December 6, 2011, and February 16, 2012, areaffirmed insofar as appealed from; and it is further,
Ordered that the order entered August 7, 2012, is affirmed; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
Contrary to the plaintiff's contention, the appellant's appendix is sufficient for thepurpose of reviewing the issues she raises (see Matter of Gregory v Gregory, 68 AD3d 770, 771-772[2009]; Wilson v Power HouseDev. Corp., 12 AD3d 505 [2004]).
The appellant moved, inter alia, to dismiss the complaint pursuant to CPLR 3211 (a),and separately moved, among other things, in effect, pursuant to CPLR 5015 (a) (3) tovacate a judgment of foreclosure and sale entered upon her failure to appear or answerthe complaint. The Supreme Court denied those motions. The appellant then moved forleave to reargue the prior [*2]motions. Upon, in effect,reargument, the Supreme Court properly adhered to its original determination, since theappellant did not demonstrate that the plaintiff engaged in the type of fraud,misrepresentation, or misconduct that would warrant vacatur of the judgment offoreclosure and sale pursuant to CPLR 5015 (a) (3) (see U.S. Bank N.A. v Allen, 102 AD3d 955 [2013]; U.S. Bank N.A. v Tate, 102AD3d 859, 860 [2013]; Deutsche Bank Natl. Trust Co. v Hunter, 100 AD3d 810,811 [2012]; Bank of N.Y. vStradford, 55 AD3d 765, 766 [2008]).
The Supreme Court properly denied that branch of the appellant's subsequent motionwhich was for leave to renew, since the new evidence offered on the motion would nothave changed the prior determination (see CPLR 2221 [e] [2]; Hughes v Welsbach Elec. Co.,101 AD3d 684, 685 [2012]; Arthur J. Gallagher & Co. v Marchese, 96 AD3d 791,792 [2012]).
The Supreme Court also properly denied the appellant's subsequent motion, interalia, pursuant to CPLR 5015 (a) (2) and (3) to vacate the judgment of foreclosure andsale. The newly discovered evidence relied upon by the appellant would not have"produced a different result" in the entry of the default judgment of foreclosure and sale(CPLR 5015 [a] [2]; see Stipo vCarpenito, 92 AD3d 864, 865 [2012]). Moreover, the new evidence failed todemonstrate that the plaintiff engaged in fraud, misrepresentation, or misconductwarranting vacatur of the judgment of foreclosure and sale pursuant to CPLR 5015 (a)(3) (see U.S. Bank N.A. vAllen, 102 AD3d 955 [2013]; U.S. Bank N.A. v Tate, 102 AD3d at 860;Deutsche Bank Natl. Trust Co. v Hunter, 100 AD3d at 811; Bank of N.Y. vStradford, 55 AD3d at 766).
The appellant's remaining contentions either are without merit or have been renderedacademic in light of our determination. Mastro, J.P., Chambers, Austin and Miller, JJ.,concur.