Opinion
12-21-2016
U.S. BANK NATIONAL ASSOCIATION, etc., respondent, v. Ronald B. LOSNER, et al., defendants, Sixta Rodriguez, appellant.
Donna Dougherty, Rego Park, N.Y. (Dianne O. Woodburn and Abhay Kotwal of counsel), for appellant. Knuckles Komosinkski & Manfro LLP, Elmsford, N.Y. (Stuart L. Kossar of counsel), for respondent.
Donna Dougherty, Rego Park, N.Y. (Dianne O. Woodburn and Abhay Kotwal of counsel), for appellant.
Knuckles Komosinkski & Manfro LLP, Elmsford, N.Y. (Stuart L. Kossar of counsel), for respondent.
REINALDO E. RIVERA, J.P., CHERYL E. CHAMBERS, SHERI S. ROMAN, and HECTOR D. LaSALLE, JJ.
In an action to foreclose a mortgage, the defendant Sixta Rodriguez appeals, as limited by her brief, from so much of an order of the Supreme Court, Queens County (Butler, J.), entered August 10, 2015, as denied that branch of her motion which was pursuant to CPLR 5015(a) to vacate a judgment of foreclosure and sale of the same court entered July 11, 2008, upon her failure to appear or answer the complaint.
ORDERED that the order entered August 10, 2015, is reversed insofar as appealed from, on the facts and in the exercise of discretion, with costs, and that branch of the motion of the defendant Sixta Rodriguez which was pursuant to CPLR 5015(a) to vacate the judgment of foreclosure and sale is granted.
The plaintiff commenced this action in 2007 to foreclose two mortgages on a residential property in Ozone Park. In 2006, a year before this action was commenced, the appellant, Sixta Rodriguez, and Jose Bello commenced an action to quiet title to the subject property. They alleged that Ronald B. Losner, a codefendant in the instant foreclosure action, fraudulently induced them to convey title to the subject property to him by representing that a document he gave them to sign as a mortgage loan agreement was, in fact, a deed to the property. After he obtained title to the property, Losner obtained two loans, secured by mortgages against the property, from the plaintiff's predecessor-in-interest, Approved Funding Corp. (hereinafter AFC), and then defaulted on the loans. The action to quiet title named AFC as a defendant.
In the instant foreclosure action, Rodriguez and Bello were initially designated as Jane Doe and John Doe, respectively, occupants of the subject property, and were served as such with the summons and complaint. They did not appear or answer. The Supreme Court later granted the plaintiff's motion to amend the complaint to substitute Rodriguez and Bello as defendants, and to appoint a referee to compute the amount due under the notes and mortgages, and in July of 2008 the plaintiff obtained a default judgment of foreclosure and sale of the subject property.
The plaintiff was initially prevented from selling the property by a preliminary injunction granted in the action to quiet title. However, in 2013, the plaintiff successfully moved in the action to quiet title pursuant to CPLR 306–b and 3215(c) to dismiss the complaint in that action insofar as asserted against AFC for lack of proper service. Rodriguez appealed, and this Court affirmed (see Bello v. Losner, 132 A.D.3d 794, 17 N.Y.S.3d 877 ). Rodriguez then moved in this action, inter alia, pursuant to CPLR 5015(a) to vacate the judgment of foreclosure and sale. The Supreme Court denied the motion, and Rodriguez appeals.
"Under CPLR 5015(a), a court is empowered to vacate a default judgment for several reasons, including excusable neglect; newly-discovered evidence; fraud, misrepresentation or other misconduct by an adverse party; lack of jurisdiction; or upon the reversal, modification or vacatur of a prior order" (Woodson v. Mendon Leasing Corp., 100 N.Y.2d 62, 68, 760 N.Y.S.2d 727, 790 N.E.2d 1156 ; see Hudson City Sav. Bank v. Cohen, 120 A.D.3d 1304, 1305, 993 N.Y.S.2d 66 ). "The decision as to the setting aside of a default in answering is generally left to the sound discretion of the Supreme Court, the exercise of which will generally not be disturbed if there is support in the record therefor" (Manigat v. Louis, 262 A.D.2d 289, 289, 691 N.Y.S.2d 559 [internal quotation marks omitted]; see Hudson City Sav. Bank v. Cohen, 120 A.D.3d at 1305, 993 N.Y.S.2d 66 ; Tobin v. Perlmutter, 288 A.D.2d 210, 732 N.Y.S.2d 576 ).
"Where, as here, a defendant seeking to vacate a default judgment raises a jurisdictional objection pursuant to CPLR 5015(a)(4), and seeks a discretionary vacatur pursuant to CPLR 5015(a)(1), a court is required to resolve the jurisdictional question before determining whether it is appropriate to grant a discretionary vacatur of the default under CPLR 5015(a)(1)" (HSBC Bank USA, N.A. v. Dalessio, 137 A.D.3d 860, 862–863, 27 N.Y.S.3d 192 [internal quotation marks omitted]; see Wachovia Bank, N.A. v. Greenberg, 138 A.D.3d 984, 985, 31 N.Y.S.3d 110 ; Wells Fargo Bank, NA v. Besemer, 131 A.D.3d 1047, 16 N.Y.S.3d 819 ; Roberts v. Anka, 45 A.D.3d 752, 846 N.Y.S.2d 280 ).
Here, while Rodriguez concedes that she received the summons and complaint, she contends that she was not properly served because the plaintiff failed to show that it made a genuine effort to identify her, and because she should have been named and served as a necessary party pursuant to CPLR 1001(a). These contentions are without merit.
CPLR 1024 permits "[a] party who is ignorant, in whole or in part, of the name or identity of a person who may properly be made a party" to "proceed against such person as an unknown party by designating so much of his name and identity as is known. If the name or remainder of the name becomes known all subsequent proceedings shall be taken under the true name and all prior proceedings shall be deemed amended accordingly." Here, the Bank complied with the statute by moving to amend the complaint to substitute Rodriguez's name less than five months after commencing this foreclosure action. While it is true that "[i]n order to employ the procedural ‘Jane Doe’ or ‘John Doe’ mechanism made available by CPLR 1024, a plaintiff must show that he or she made timely efforts to identify the correct party before the statute of limitations expired" (Holmes v. City of New York, 132 A.D.3d 952, 953, 18 N.Y.S.3d 676 ; see Luckern v. Lyonsdale Energy Ltd. Partnership, 229 A.D.2d 249, 253, 654 N.Y.S.2d 543 ; Porter v. Kingsbrook OB/GYN Assoc., 209 A.D.2d 497, 618 N.Y.S.2d 837 ; ABKCO Indus. v. Lennon, 52 A.D.2d 435, 441–442, 384 N.Y.S.2d 781 ), the motion to amend was made within the limitations period. Further, contrary to Rodriguez's contention, she was joined as a party, first as Jane Doe, described in the caption as one of "parties intended being possible tenants or occupants of premises," and less than five months later, as a named defendant. Moreover, unlike the defendants in the cases she cites, Rodriguez was personally served with the summons and complaint (cf. 1426 46 St., LLC v. Klein, 60 A.D.3d 740, 742, 876 N.Y.S.2d 425 ; Matter of Si Bank & Trust v. Sheriff of City of N.Y., 300 A.D.2d 667, 751 N.Y.S.2d 794 ; 6820 Ridge Realty v. Goldman, 263 A.D.2d 22, 26, 701 N.Y.S.2d 69 ). Accordingly, the Supreme Court properly rejected Rodriguez's personal jurisdiction argument.
Nevertheless, we find that the Supreme Court improvidently exercised its discretion in denying the motion to vacate the default judgment.
"In addition to the grounds set forth in section 5015(a), 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, citing Ladd v. Stevenson, 112 N.Y. 325, 332, 19 N.E. 842 ; see Hudson City Sav. Bank v. Cohen, 120 A.D.3d at 1305, 993 N.Y.S.2d 66 ). Moreover, "[a] foreclosure action is equitable in nature and triggers the equitable powers of the court" (Deutsche Bank Natl. Trust Co. v. Luden, 91 A.D.3d 701, 701, 936 N.Y.S.2d 561 [internal quotation marks omitted]; see Notey v. Darien Constr. Corp., 41 N.Y.2d 1055, 1055–1056, 396 N.Y.S.2d 169, 364 N.E.2d 833 ; US Bank N.A. v. Williams, 121 A.D.3d 1098, 1101–1102, 995 N.Y.S.2d 172 ; Norwest Bank Minn., NA v. E.M.V. Realty Corp., 94 A.D.3d 835, 836, 943 N.Y.S.2d 113 ; Mortgage Elec. Registration Sys., Inc. v. Horkan, 68 A.D.3d 948, 890 N.Y.S.2d 326 ). "Once equity is invoked, the court's power is as broad as equity and justice require" (Norstar Bank v. Morabito, 201 A.D.2d 545, 546, 607 N.Y.S.2d 426 ; see Mortgage Elec. Registration Sys., Inc. v. Horkan, 68 A.D.3d at 948, 890 N.Y.S.2d 326 ). Thus, a court may rely on "its inherent authority to vacate [a judgment] in the interest of substantial justice, rather than its statutory authority under CPLR 5015 (a)," as the "statutory grounds are subsumed by the court's broader inherent authority" (Matter of Adelson, 84 A.D.3d 952, 953, 921 N.Y.S.2d 884 ).
Under the unique circumstances of this case, we find that Rodriguez was entitled to vacatur of the judgment of foreclosure and sale entered upon her default in the interest of substantial justice (see Wells Fargo Bank v. Hodge, 92 A.D.3d 775, 775–776, 939 N.Y.S.2d 98 ; Nationscredit Fin. Sers. Corp. v. Atherley, 91 A.D.3d 922, 937 N.Y.S.2d 603 ).