Opinion
2012-04-3
WELLS FARGO BANK N.A., etc., respondent, v. Carlos HORNES, appellant.
Ernest E. Ranalli, Hauppauge, N.Y., for appellant. Shapiro, DiCaro & Barak, LLC, Rochester, N.Y. (Ellis M. Oster of counsel), for respondent.
Ernest E. Ranalli, Hauppauge, N.Y., for appellant. Shapiro, DiCaro & Barak, LLC, Rochester, N.Y. (Ellis M. Oster of counsel), for respondent.
RUTH C. BALKIN, J.P., RANDALL T. ENG, L. PRISCILLA HALL, and SANDRA L. SGROI, JJ.
In an action to foreclose a mortgage, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Tanenbaum, J.), entered February 10, 2011, as denied those branches of his motion which were pursuant to CPLR 5015 to vacate a judgment of foreclosure and sale of the same court entered March 4, 2009, upon his default in answering or appearing.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The Supreme Court properly denied that branch of the defendant's motion which was pursuant to CPLR 5015(a)(4) to vacate a judgment of foreclosure and sale. Although the defendant alleged that he was not served with process in the instant action, it is undisputed that he filed for bankruptcy and received a discharge after the entry of the judgment of foreclosure and sale. Since the defendant received a favorable result in bankruptcy court, i.e., a discharge from personal liability ( see Nelson, L.P. v. Jannace, 87 A.D.3d 731, 929 N.Y.S.2d 592; Matter of Acquisitions Plus, LLC v. Shapiro, 7 A.D.3d 957, 776 N.Y.S.2d 522), to the detriment of the plaintiff, he is judicially estopped from seeking the vacatur of the judgment of foreclosure and sale based upon lack of jurisdiction ( see All Terrain Props. v. Hoy, 265 A.D.2d 87, 705 N.Y.S.2d 350; see also MJD Constr. v. Woodstock Lawn & Home Maintenance, 293 A.D.2d 516, 740 N.Y.S.2d 402; D & L Holdings v. Goldman Co., 287 A.D.2d 65, 734 N.Y.S.2d 25).
The Supreme Court also properly denied those branches of the defendant's motion which were to vacate the judgment of foreclosure and sale pursuant to CPLR 5015(a)(1), since he failed to demonstrate a reasonable excuse for his default ( see Stephan B. Gleich & Assoc. v. Gritsipis, 87 A.D.3d 216, 927 N.Y.S.2d 349), and pursuant to CPLR 5015(a)(3), since he failed to establish that the plaintiff procured the judgment of foreclosure and sale by fraud, misrepresentation, or other misconduct ( see Midfirst Bank v. Al–Rahman, 81 A.D.3d 797, 917 N.Y.S.2d 871; Tribeca Lending Corp. v. Crawford, 79 A.D.3d 1018, 916 N.Y.S.2d 116).