Mortg. Elec. Registration Sys., Inc. v. Dort-Relus

• Decision Date: 19 June 2013
• Citation: 2013 N.Y. Slip Op. 04583,107 A.D.3d 861,968 N.Y.S.2d 117
• Parties: MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., appellant, v. Emile DORT–RELUS, etc., et al., defendants, Vincent T. Longobardi, nonparty-respondent.
• Court: New York Supreme Court — Appellate Division

107 A.D.3d 861
968 N.Y.S.2d 117
2013 N.Y. Slip Op. 04583

MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., appellant,
v.
Emile DORT–RELUS, etc., et al., defendants,
Vincent T. Longobardi, nonparty-respondent.

Supreme Court, Appellate Division, Second Department, New York.

June 19, 2013.

Hogan Lovells U.S. LLP, New York, N.Y. (David Dunn and Jordan L. Estes of counsel), for appellant.

Stern & Stern, Brooklyn, N.Y. (Lawrence M. Stern and Pamela E. Smith of counsel), for nonparty-respondent.

WILLIAM F. MASTRO, J.P., MARK C. DILLON, THOMAS A. DICKERSON, and LEONARD B. AUSTIN, JJ.

[107 A.D.3d 861]In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Kings County (Rothenberg, J.), dated November 3, 2011, which granted the motion of [107 A.D.3d 862]nonparty Vincent T. Longobardi to vacate a judgment of foreclosure

[968 N.Y.S.2d 118]

and sale and set aside the sale of the property.

ORDERED that the order is reversed, on the law, with costs, the motion is denied, and the judgment of foreclosure and the sale are reinstated.

The plaintiff commenced the instant action in January 2006 seeking to foreclose upon a mortgage obligation. Upon the plaintiff's motion following the defendants' failure to answer or appear, the Supreme Court, Kings County, issued a default judgment of foreclosure 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 the property 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 statutory grounds under CPLR 5015(a), which include, inter alia, excusable default, newly discovered evidence, and fraud, misrepresentation, or other misconduct by an adverse party ( seeCPLR 5015[a]; see also Woodson v. Mendon Leasing Corp., 100 N.Y.2d 62, 68, 760 N.Y.S.2d 727, 790 N.E.2d 1156). In addition, a court may vacate its own judgment “for sufficient reason and in the interests of substantial justice” ( Woodson v. Mendon Leasing Corp., 100 N.Y.2d at 68, 760 N.Y.S.2d 727, 790 N.E.2d 1156). It is the movant's burden “to show that the prior order [ ] should be set aside by submission of sufficient evidence supporting the...