Wells Fargo Bank, N.A. v. Braun — 123 A.D.3d 698

Majority

p. 698

Wells Fargo Bank, N.A., Respondent, v Moshe Braun et al., Appellants, et al., Defendant.

[998 NYS2d 420]

In an action to foreclose a mortgage, the defendants Moshe Braun and Yehudas Braun appeal, as limited by their brief, from stated portions of an order of the Supreme Court, Rockland County (Garvey, J.), dated August 22, 2012, which, inter alia, denied that branch of their motion which was pursuant to CELR 5015 (a) (3) to vacate a judgment of foreclosure and sale of the same court entered July 30, 2008, upon their failure to appear or answer the complaint.

Ordered that the order is affirmed insofar as appealed from, with costs.

The Supreme Court properly denied that branch of the motion of the defendants Moshe Braun and Yehudas Braun (hereinafter together the defendants) which was to vacate a judgment of foreclosure and sale pursuant to CELR 5015 (a) (3). Under the circumstances of this case, the defendants failed to move for relief pursuant to CELR 5015 (a) (3) within a reasonable time after entry of the judgment (see Indymac Bank, F.S.B. v Yano-Horoski, 107 AD3d 672 [2013]; Bank of N.Y. v Stradford, 55 AD3d 765 , 765 [2008]). In any event, the defendants failed to

p. 699

provide a reasonable excuse for the default, which is required when a CPLR 5015 (a) (3) motion alleges intrinsic fraud, i.e., that the allegations in the complaint are false (see New Century Mtge. Corp. v Corriette, 117 AD3d 1011 , 1012 [2014]; Bank of N.Y. v Stradford, 55 AD3d at 765-766 ; Bank of N.Y. v Lagakos, 27 AD3d 678 , 679 [2006]).

In light of our determination, we need not address the parties’ remaining contentions.

Balkin, J.P., Hall, Austin and Barros, JJ., concur.

Cases cited

Bank of New York v. Stradford 55 AD3d 765 N.Y. App. Div. 2008-10-21 at 765 p. 698
New Century Mortgage Corp. v. Corriette 117 AD3d 1011 N.Y. App. Div. 2014-05-28 at 1012 p. 699
Bank of New York v. Lagakos 27 AD3d 678 N.Y. App. Div. 2006-03-28 at 679 p. 699