Opinion
2016–10762 Index No. 17073/09
03-21-2018
WELLS FARGO BANK, N.A., etc., respondent, v. Hyun J. CHOO, appellant, et al., defendants.
Harvey Sorid, Uniondale, NY, for appellant. Shapiro, DiCaro & Barak, LLC (McGlinchey Stafford, New York, N.Y. [Brian S. McGrath and Fincey John ], of counsel), for respondent.
Harvey Sorid, Uniondale, NY, for appellant.
Shapiro, DiCaro & Barak, LLC (McGlinchey Stafford, New York, N.Y. [Brian S. McGrath and Fincey John ], of counsel), for respondent.
WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, COLLEEN D. DUFFY, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER Appeal from an order of the Supreme Court, Queens County (Carmen R. Velasquez, J.), dated June 10, 2016. The order, insofar as appealed from, denied that branch of the motion of the defendant Hyun J. Choo which was to vacate an order of reference and a judgment of foreclosure and sale, entered upon his default in appearing or answering the complaint.
ORDERED that the order dated June 10, 2016, is affirmed insofar as appealed from, with costs.
In June 2009, the plaintiff commenced this action against the defendant Hyun J. Choo, among others, to foreclose a mortgage. Choo failed to appear or answer the complaint, and the Supreme Court granted the plaintiff's motions for an order of reference and for a judgment of foreclosure and sale. Subsequently, Choo moved, inter alia, to vacate the order of reference and the judgment of foreclosure and sale. The Supreme Court denied the motion, and Choo 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 CPLR 5015[a] ; HSBC Bank USA v. Josephs–Byrd, 148 A.D.3d 788, 49 N.Y.S.3d 477 ; 40 BP, LLC v. Katatikarn , 147 A.D.3d 710, 46 N.Y.S.3d 217 ). "However, CPLR 5015(a) does not provide an exhaustive list as to when a default judgment may be vacated, and a court may vacate its own judgment for sufficient reason and in the interests of substantial justice" (40 BP, LLC v. Katatikarn , 147 A.D.3d at 711, 46 N.Y.S.3d 217, citing Woodson v. Mendon Leasing Corp., 100 N.Y.2d at 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 ). Here, Choo did not move pursuant to CPLR 5015(a) ; rather, he expressly moved to vacate the order of foreclosure and judgment of foreclosure and sale "in the interests of justice." Although the Supreme Court retains "inherent discretionary power to relieve a party from a judgment or order for sufficient reason and in the interest of substantial justice" ( Galasso, Langione & Botter, LLP v. Liotti, 81 A.D.3d 884, 885, 917 N.Y.S.2d 667 ; see Ladd v. Stevenson, 112 N.Y. 325, 332, 19 N.E. 842 ; Katz v. Marra, 74 A.D.3d 888, 890, 905 N.Y.S.2d 204 ), "[a] court's inherent power to exercise control over its judgments is not plenary, and should be resorted to only to relieve a party from judgments taken through [fraud,] mistake, inadvertence, surprise or excusable neglect" ( Matter of McKenna v. County of Nassau, Off. of County Attorney, 61 N.Y.2d 739, 742, 472 N.Y.S.2d 913, 460 N.E.2d 1348 [internal quotation marks omitted]; see Wells Fargo Bank Minn., N.A. v. Coletta, 153 A.D.3d 757, 60 N.Y.S.3d 320 ; HSBC Bank USA v. Josephs–Byrd, 148 A.D.3d at 790, 49 N.Y.S.3d 477; Long Is. Light. Co. v. Century Indem. Co. , 52 A.D.3d 383, 384, 861 N.Y.S.2d 616 ; Quinn v. Guerra, 26 A.D.3d 872, 873, 811 N.Y.S.2d 238 ). Here, Choo failed to provide any evidence of fraud, mistake, inadvertence, surprise, or excusable neglect that would warrant vacating the order of reference or the judgment of foreclosure and sale in the interests of substantial justice (see Wells Fargo Bank Minn., N.A. v. Coletta, 153 A.D.3d at 758, 60 N.Y.S.3d 320 ; HSBC Bank USA v. Josephs–Byrd, 148 A.D.3d at 790, 49 N.Y.S.3d 477; HSBC Mtge. Servs. v. Talip, 111 A.D.3d 889, 890, 975 N.Y.S.2d 887 ; cf. Nationscredit Fin. Servs. Corp. v. Atherley, 91 A.D.3d 922, 922, 937 N.Y.S.2d 603 ).
In light of our determination, we need not reach the parties' remaining contentions.
Accordingly, the Supreme Court properly denied that branch of Choo's motion which was to vacate the order of reference and the judgment of foreclosure and sale.
MASTRO, J.P., CHAMBERS, DUFFY and CONNOLLY, JJ., concur.