From Casetext: Smarter Legal Research

Aames Capital Corporation v. Davidsohn

Appellate Division of the Supreme Court of New York, Second Department
Dec 12, 2005
24 A.D.3d 474 (N.Y. App. Div. 2005)

Opinion

2004-06079.

December 12, 2005.

In an action to foreclose a mortgage, the defendant John Davidsohn appeals from an order of the Supreme Court, Suffolk County (Emerson, J.), dated May 12, 2004, which denied his motion to vacate a judgment of foreclosure and sale of the same court entered March 5, 1998, upon his default in appearing.

Before: Cozier, J.P., Ritter, Goldstein and Lifson, JJ., concur.


Ordered that the order is affirmed, with costs.

As the appellant did not attempt to argue that his default in appearing in the action was excusable, we view his motion to vacate the judgment as having been made pursuant to CPLR 5015 (a) (3), which provides that "[t]he court which rendered a judgment or order may relieve a party from it upon such terms as may be just . . . upon the ground of . . . fraud, misrepresentation, or other misconduct of an adverse party." Although there is no express time limit for seeking relief from a judgment pursuant to CPLR 5015 (a) (3), a party is required to make the motion within a reasonable time ( see Richardson v. Richardson, 309 AD2d 795, 796; Miller v. Lanzisera, 273 AD2d 866, 868; Green Point Sav. Bank v. Arnold, 260 AD2d 543; City of Albany Indus. Dev. Agency v. Garg, 250 AD2d 991, 993). Here, the appellant's delay of more than five years after entry of the judgment of foreclosure and sale in moving to vacate the judgment was unreasonable.

In any event, even without considering the appellant's laches, he was not entitled to relief "because he offered nothing more than broad, unsubstantiated allegations of fraud on the part of [the] plaintiff" ( Miller v. Lanzisera, supra at 868).


Summaries of

Aames Capital Corporation v. Davidsohn

Appellate Division of the Supreme Court of New York, Second Department
Dec 12, 2005
24 A.D.3d 474 (N.Y. App. Div. 2005)
Case details for

Aames Capital Corporation v. Davidsohn

Case Details

Full title:AAMES CAPITAL CORPORATION, Respondent, v. JOHN DAVIDSOHN, Appellant, et…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Dec 12, 2005

Citations

24 A.D.3d 474 (N.Y. App. Div. 2005)
808 N.Y.S.2d 229

Citing Cases

Deutsche Bank National Trust Company v. Gillio

An exception to the foregoing rule applies where a judgment on the default was entered prior to the…

Wolman v. Now Sols.

"Although there is no express time limit for seeking relief from a judgment pursuant to CPLR 5015(a)(3), a…