AMK CAPITAL CORP v. Magdy Mikhail et al., Nonparty Respondents. (2023)

Appeal from order, Supreme Court, Bronx County (Doris M. Gonzalez, J.), entered on or about August 26, 2020, which denied defendant Adam Plotch's motion to vacate the judgment of foreclosure, the foreclosure sale to a third party, and the subsequent sale to another third party on procedural grounds, and directed him to renew his motion by order to show cause, unanimously dismissed, without costs.

No appeal lies from the order, which merely directed defendant Plotch to resubmit his motion in proper form.  We note that CPLR 5015(a) provides that “[t]he court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person with such notice as the court may direct.”  Thus it was not improper for Supreme Court to deny Plotch's motion made on notice without prejudice to renewal as an order to show cause (see Matter of Wallace v. Bujanow, 176 A.D.3d 1307, 1308, 110 N.Y.S.3d 167 [3d Dept. 2019];  Smith v. Smith, 291 A.D.2d 828, 828, 736 N.Y.S.2d 557 [4th Dept. 2002]).

Plotch's reliance on Executive Order 202.57 (9 NYCRR 8.202.57) and Administrative Order 157/20 for the contention that Supreme Court was barred from deciding his motion without a conference is unavailing, as these orders pertained to pending foreclosure actions.  A judgment of foreclosure in this case was entered in December 2018, the property sold at a foreclosure auction in February 2019, and then resold to nonparty proposed intervenors, the Mikhails in August 2019;  there was no requirement for Supreme Court to conference this matter before reviewing Plotch's 2020 motion.

Motion by defendant Plotch to withdraw appeal, denied.