Bank of America, N.A. v. Gowrie — 155 A.D.3d 995

Majority

p. 995

(November 29, 2017)

Bank of America, N.A., Successor by Merger to LaSalle Bank National Association, as Trustee for Morgan Stanley Mortgage Loan Trust 2006-13-ARX, Respondent, v Samuel L. Gowrie et al., Appellants, et al., Defendants.

[64 NYS3d 584]

In an action to foreclose a mortgage, the defendants Samuel L. Gowrie, Heather Gowrie, Sherwin Gowrie, and Simone Gowrie appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Velasquez, J.), dated February 26, 2015, as granted those branches of the plaintiff’s motion which were to vacate a prior order of reference of the same court (Agate, J.) dated July 10, 2009, to vacate a judgment of foreclosure and sale of the same court (Agate, J.) dated November 4, 2009, and for a new order of reference.

Ordered that the order dated February 26, 2015, is affirmed insofar as appealed from, with costs.

Contrary to the appellants’ contention, the Supreme Court

p. 996

providently exercised its discretion in granting those branches of the plaintiffs motion which were to vacate a prior order of reference and a judgment of foreclosure and sale (see CPLR 5015 [a] [5]; Bank of N.Y. Mellon v Casale, 140 AD3d 682 , 682 [2016]; Bank of N.Y. v Stein, 130 AD3d 552 , 552 [2015]). The plaintiff also was entitled to a new order of reference, since, in support of its motion, it submitted the mortgage, the underlying unpaid note, the complaint setting forth the facts establishing the claim, and an affidavit attesting to the default on the mortgage (see US Bank N.A. v Singer, 145 AD3d 1057 , 1058 [2016]; Bank of N.Y. Mellon v Casale, 140 AD3d at 682 ; U.S. Bank N.A. v Ahmed, 137 AD3d 1106 , 1108 [2016]; U.S. Bank N.A. v Gulley, 137 AD3d 1008 , 1009 [2016]; Bank of N.Y. v Stein, 130 AD3d at 552 ).

On a prior appeal, this Court affirmed an order denying the appellants’ motion pursuant to CPLR 5015 (a) (1) to vacate their default in answering the complaint (see Bank of Am., N.A. v Gowrie, 106 AD3d 677 [2013]). Contrary to the appellants’ contention, since they defaulted in answering the complaint and failed to demonstrate grounds for vacating their default, they are precluded from asserting, in essence, the plaintiff’s lack of standing as a basis for denial of that branch of the plaintiff’s motion which was for a new order of reference (cf. Bank of N.Y. Mellon v Izmirligil, 144 AD3d 1067 , 1068 [2016]).

The appellants’ remaining contentions are without merit.

Mastro, J.P., Chambers, LaSalle and Brathwaite Nelson, JJ., concur.

Cases cited

Bank of New York Mellon v. Casale 140 AD3d 682 N.Y. App. Div. 2016-06-01 at 682 p. 996
Bank of New York v. Stein 130 AD3d 552 N.Y. App. Div. 2015-07-01 at 552 p. 996
US Bank National Ass'n v. Singer 145 AD3d 1057 N.Y. App. Div. 2016-12-28 at 1058 p. 996
U.S. Bank National Ass'n v. Ahmed 137 AD3d 1106 N.Y. App. Div. 2016-03-23 at 1108 p. 996
U.S. Bank National Ass'n v. Gulley 137 AD3d 1008 N.Y. App. Div. 2016-03-16 at 1009 p. 996
Bank of New York Mellon v. Izmirligil 144 AD3d 1067 N.Y. App. Div. 2016-11-30 at 1068 p. 996