KONDAUR CAPITAL CORPORATION v. STEWART (2018)

DECISION & ORDER

ORDERED that the order dated July 22, 2015, is affirmed;  and it is further,

ORDERED that the order dated September 30, 2015, is affirmed insofar as appealed from;  and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

In July 2007, H & R Block Bank (hereinafter H & R Block) commenced this mortgage foreclosure action against the defendant Cheryl N. Stewart (hereinafter the defendant), among others.  The mortgage was subsequently assigned to Kondaur Capital Corporation (hereinafter Kondaur).

Kondaur was granted a judgment of foreclosure and sale in October 2013.  In April 2015, Kondaur moved for leave to file a late notice of sale of the subject property, and by order dated July 22, 2015, the Supreme Court granted Kondaur's motion.  Prior to the sale of the property, the defendant moved pursuant to CPLR 5015(a) to vacate the judgment of foreclosure and sale based upon allegations of newly-discovered evidence, fraud, and lack of subject matter jurisdiction, and thereupon to dismiss the complaint insofar as asserted against her.  The defendant subsequently filed a successive motion for the same relief.  In an order dated September 30, 2015, the court denied the defendant's successive motions.  The defendant appeals.

The defendant failed to demonstrate her entitlement to relief based upon newly discovered evidence (see CPLR 5015[a][2];  Deutsche Bank Natl. Trust Co. v. Morris, 160 A.D.3d 613, 70 N.Y.S.3d 856;  Wall St. Mtge. Bankers, Ltd. v. Rodgers, 148 A.D.3d 1088, 1089, 49 N.Y.S.3d 753).  Notably, even if the evidence cited by the defendant could be considered newly discovered, she failed to establish that such evidence would probably have produced a different result (see Bank of N.Y. v. Tobing, 155 A.D.3d 596, 596–597, 63 N.Y.S.3d 106;  U.S. Bank N.A. v. Galloway, 150 A.D.3d 1174, 1175, 52 N.Y.S.3d 644;  IMC Mtge. Co. v. Vetere, 142 A.D.3d 954, 955, 37 N.Y.S.3d 329;  Federated Conservationists of Westchester County v. County of Westchester, 4 A.D.3d 326, 327, 771 N.Y.S.2d 530).

Additionally, the defendant failed to demonstrate her entitlement to vacatur pursuant to CPLR 5015(a)(3).  A party seeking to vacate a judgment pursuant to CPLR 5015(a)(3) must make the motion within a reasonable time.  Here, the defendant's delay in moving to vacate the judgment of foreclosure and sale was unreasonable (see Dimery v. Ulster Sav. Bank, 82 A.D.3d 1034, 1034, 920 N.Y.S.2d 144;  Bank of N.Y. v. Stradford, 55 A.D.3d 765, 765, 869 N.Y.S.2d 554).  In any event, the defendant failed to demonstrate any fraud, misrepresentation, or other misconduct warranting vacatur of the judgment (see Summitbridge Credit Invs., LLC v. Wallace, 128 A.D.3d 676, 677–678, 9 N.Y.S.3d 320).

The defendant contends that the Supreme Court lacked jurisdiction to issue the judgment of foreclosure and sale because Kondaur lacked standing.  However, “ ‘an alleged lack of standing is not a jurisdictional defect’ ” (HSBC Bank USA, N.A. v. Dalessio, 137 A.D.3d 860, 863, 27 N.Y.S.3d 192, quoting JP Morgan Mtge. Acquisition Corp. v. Hayles, 113 A.D.3d 821, 823, 979 N.Y.S.2d 620;  see CPLR 5015[a][4] ).

The defendant's remaining contentions are without merit.

Accordingly, we agree with the Supreme Court's granting of Kondaur's motion for leave to file a late notice of sale of the subject property, and denial of the defendant's successive motions to vacate the judgment of foreclosure and sale and thereupon to dismiss the complaint insofar as asserted against her.

RIVERA, J.P., CHAMBERS, BARROS and BRATHWAITE NELSON, JJ., concur.