Wednesday, February 1, 2017

A CPLR 5015(a)(3) motion to vacate a judgment of foreclosure and sale.

The Appellate Division affirmed the order denying defendant's motion to vacate the judgment that was entered upon its failure to answer the complaint, and for leave to serve a late answer, finding that the motion was not made within a reasonable time after entry of the judgment.  In any event, defendant failed to demonstrate a reasonable excuse for the default, which is required when a CPLR 5015(a)(3) motion alleges intrinsic fraud, that is, that the allegations in the complaint are false, rather than extrinsic fraud, which is a fraud practiced in obtaining a judgment such that a party may have been prevented from fully and fairly litigating the matter. Defendant failed to demonstrate some device, trick, or deceit that led it to believe that it need not defend the suit. Finally, despite the defendant's allegations of improper practices by plaintiff's agents in unrelated matters, it failed to meet its burden of establishing fraud, misrepresentation, or other misconduct on the part of the plaintiff in this matter that could warrant vacatur of the default judgment.

Case:  LaSalle Bank N.A. v. Oberstein, NY Slip Op 00462 (2d Dep't January 25, 2018)

Here is the decision.

Tomorrow's issue:  Resolving the issue of probable cause as a matter of law.