| Rossrock Fund II, L.P. v Norlin Corp. |
| 2015 NY Slip Op 04469 [128 AD3d 1046] |
| May 27, 2015 |
| Appellate Division, Second Department |
[*1]
| Rossrock Fund II, L.P., Respondent, v NorlinCorporation et al., Appellants, et al., Defendants. |
Frank Whorton, Brooklyn, N.Y., for appellants.
Kriss & Feurstein, LLP, New York, N.Y. (Kenneth P. Horowitz of counsel), forrespondent.
In an action to foreclose a mortgage, the defendants Norlin Corporation andHyacinth Simms appeal, as limited by their brief, from (1) so much of an order of theSupreme Court, Kings County (Dabiri, J.), dated March 4, 2010, as granted that branchof the plaintiff's motion which was for summary judgment on the complaint insofar asasserted against Norlin Corporation, and (2) so much of an order of the same court datedDecember 19, 2012, as denied those branches of their motion which were pursuant toCPLR 5015 (a) (3) to vacate that portion of the order dated March 4, 2010, and so muchof a judgment of foreclosure and sale of the same court dated November 29, 2011, as isin favor of the plaintiff and against them.
Ordered that the appeal from the order dated March 4, 2010, is dismissed; and it isfurther,
Ordered that the order dated December 19, 2012, is affirmed insofar as appealedfrom; and it is further,
Ordered that one bill of costs is awarded to the plaintiff, payable by the defendantsNorlin Corporation and Hyacinth Simms.
The appeal from the intermediate order dated March 4, 2010, must be dismissedbecause the right of direct appeal therefrom terminated with the entry of the finaljudgment of foreclosure and sale in the action (see Matter of Aho, 39 NY2d 241,248 [1976]). Moreover, the appeal by Hyacinth Simms from that order must be dismissedon the additional ground that she was not aggrieved by that order, as that order did notaward the plaintiff summary judgment on the complaint insofar as asserted againstSimms.
The Supreme Court properly denied those branches of the motion of NorlinCorporation (hereinafter Norlin) and Hyancinth Simms which were to vacate so much ofan order dated March 4, 2010, as granted that branch of the plaintiff's motion which wasfor summary judgment on the complaint insofar as asserted against Norlin, and so muchof the judgment of foreclosure and sale as is in favor of the plaintiff and against them. Toprevail on a motion pursuant [*2]to CPLR 5015 (a) (3) tovacate an order granting summary judgment in a foreclosure action and a judgment offoreclosure and sale, the proponent must establish that the opponent procured the orderand the judgment of foreclosure and sale by fraud, misrepresentation, or othermisconduct (see Wells FargoBank N.A. v Hornes, 94 AD3d 755 [2012]; Midfirst Bank v Al-Rahman, 81 AD3d 797 [2011]; Tribeca Lending Corp. vCrawford, 79 AD3d 1018 [2010]). "[I]t is well established that a party seekingto set aside a judgment on the basis of fraud 'will not prevail by merely showing fraud inthe underlying transaction but must show fraud in the very means by which the judgmentwas procured' " (Cofresi v Cofresi, 198 AD2d 321, 321 [1993], quotingBell v Town Bd. of Town of Pawling, 146 AD2d 729, 730 [1989]; see HallSigns v Aries Striping, 250 AD2d 811, 811 [1998]).
Norlin and Simms did not establish or allege that the order dated March 4, 2010, orthe judgment of foreclosure and sale were procured by fraud, misrepresentation, or othermisconduct. At most, Norlin and Simms allege fraud, misrepresentation, or othermisconduct by the plaintiff in the underlying transaction. Accordingly, their allegationsare insufficient to warrant vacating the order and the judgment under CPLR 5015 (a) (3).Balkin, J.P., Leventhal, Hall and Hinds-Radix, JJ., concur.