| EMC Mtge. Corp. v Toussaint |
| 2016 NY Slip Op 01151 [136 AD3d 861] |
| February 17, 2016 |
| Appellate Division, Second Department |
[*1]
| EMC Mortgage Corporation,Appellant, v Jeanetta Toussaint, Also Known as Jeanette Toussaint, Respondent,et al., Defendants. |
Stiene & Associates, P.C., Huntington, NY (Charles W. Marino of counsel), forappellant.
In an action to foreclose a mortgage, the plaintiff appeals from an order of theSupreme Court, Queens County (Sampson, J.), entered January 31, 2011, which grantedthat branch of the motion of the defendant Jeanetta Toussaint, also known as JeanetteToussaint, which was, in effect, pursuant to CPLR 5015 (a) to vacate a judgment offoreclosure and sale of the same court entered April 22, 2009, upon her failure to appearor answer the complaint, and thereupon to dismiss the complaint insofar as assertedagainst her for lack of standing.
Ordered that the order is reversed, on the law, with costs, that branch of the motionof the defendant Jeanetta Toussaint, also known as Jeanette Toussaint, which was, ineffect, pursuant to CPLR 5015 (a) to vacate the judgment of foreclosure and sale enteredupon her failure to appear or answer the complaint, and thereupon to dismiss thecomplaint insofar as asserted against her for lack of standing is denied, and the judgmentof foreclosure and sale is reinstated.
In 2007, the plaintiff commenced this mortgage foreclosure action against, amongothers, the defendant Jeanetta Toussaint, also known as Jeanette Toussaint (hereinafterthe defendant). A judgment of foreclosure and sale was entered upon, inter alia, thedefendant's failure to appear or answer the complaint. In 2010, nearly three years aftershe had been served with the summons and complaint, the defendant moved, in effect, tovacate the judgment of foreclosure and sale pursuant to CPLR 5015 (a), and thereupon todismiss the complaint insofar as asserted against her. The Supreme Court granted thedefendant's motion. The plaintiff appeals.
A defendant seeking to vacate a default in answering or appearing upon the groundof excusable default must demonstrate a reasonable excuse for the default and apotentially meritorious defense to the action (see CPLR 5015 [a] [1]; EugeneDi Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Bank of Am. N.A. v Patino,128 AD3d 994, 994 [2015]; Wells Fargo Bank, N.A. v Hampton, 119 AD3d 856[2014]). Here, the defendant failed to proffer an excuse for failing to appear or answerthe complaint. Thus, it is unnecessary to consider whether she sufficiently demonstratedthe existence of a potentially meritorious defense (see US Bank N.A. v Smith, 132 AD3d 848 [2015]; Citimortgage, Inc. vBustamante, 107 AD3d 752, 753 [2013]; Bank of Am. v Faracco, 89 AD3d 879, 880 [2011]; see also Williamson v Marlou CabCorp., 129 AD3d 711, 712 [2015]).
CPLR 5015 (a) (3) permits a court to vacate a judgment or order upon the ground of[*2]fraud, misrepresentation, or other misconduct of anadverse party. Here, insofar as relevant, the defendant did not allege "extrinsic fraud,"which is "a fraud practiced in obtaining a judgment such that a party may have beenprevented from fully and fairly litigating the matter" (Shaw v Shaw, 97 AD2d403, 403 [1983]; see U.S. Bank,N.A. v Peters, 127 AD3d 742, 742 [2015]). Thus, she was required to show areasonable excuse for her default (see U.S. Bank, N.A. v Peters, 127 AD3d at742; Bank of N.Y. vLagakos, 27 AD3d 678, 679 [2006]). However, as stated previously, she failedto offer any excuse for her default (see Bank of N.Y. v Lagakos, 27 AD3d 678 [2006]).
Accordingly, the Supreme Court should have denied the defendant's motion, ineffect, pursuant to CPLR 5015 (a) to vacate the judgment of foreclosure and sale, andthereupon to dismiss the complaint insofar as asserted against her. Dillon, J.P., Cohen,Maltese and Barros, JJ., concur.