Branch Banking and Trust Company, respondent, v. Jack A. Cohen, etc., et al., appellants, et al., defendants. (2026)

Submitted—December 4, 2025

DECISION & ORDER

In an action to foreclose a mortgage, the defendants Jack A. Cohen and Marlene Cohen appeal from an order of the Supreme Court, Kings County (Larry D. Martin, J.), dated March 14, 2023.  The order denied those defendants' motion pursuant to CPLR 5015(a)(3) to vacate an order and judgment of foreclosure and sale (one paper) of the same court (Ingrid Joseph, J.) dated November 6, 2019, and, in effect, pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them.

ORDERED that the order is affirmed, with costs.

In June 2011, the plaintiff commenced this action to foreclose a mortgage on certain real property located in Brooklyn (hereinafter the property) against, among others, the defendants Jack A. Cohen and Marlene Cohen (hereinafter together the defendants).  Jack thereafter interposed an answer in which he asserted various affirmative defenses, not including failure to comply with RPAPL 1304.  Marlene Cohen failed to answer or otherwise appear in the action.  The plaintiff subsequently moved, inter alia, for summary judgment on the complaint insofar as asserted against Jack, for leave to enter a default judgment against Marlene, and for an order of reference.  In an order dated September 11, 2017, the Supreme Court, among other things, granted those branches of the plaintiff's unopposed motion.

Thereafter, the plaintiff moved to confirm a referee's report and for a judgment of foreclosure and sale.  The defendants opposed the motion and cross-moved pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them, arguing, among other things, that the plaintiff failed to comply with RPAPL 1304.  In an order dated March 6, 2019, the Supreme Court denied the plaintiff's motion and the defendants' cross-motion.

The plaintiff subsequently moved, inter alia, for leave to reargue its prior motion to confirm the referee's report and for a judgment of foreclosure and sale.  In an order and judgment of foreclosure and sale dated November 6, 2019, the Supreme Court, among other things, upon reargument, granted the plaintiff's prior motion, confirmed the referee's report, and directed the sale of the property.

Thereafter, the defendants moved pursuant to CPLR 5015(a)(3) to vacate the order and judgment of foreclosure and sale and, in effect, pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them for failure to comply with RPAPL 1304.  In an order dated March 14, 2023, the Supreme Court denied the defendants' motion.  The defendants appeal.

Initially, contrary to the plaintiff's contention, the dismissal of the defendants' prior appeal from a decision dated November 6, 2019, for failure to perfect does not preclude our review of the issues raised herein (see Bray v. Cox, 38 N.Y.2d 350).  Since the prior appeal was from a decision, from which no appeal lies (see CPLR 5512[a];  Schicchi v. J.A. Green Constr.  Corp., 100 A.D.2d 509, 509–510), the issues raised herein could not have been previously raised (see Deutsche Bank Trust Co. Ams. v Gonzales, 215 AD3d 636, 637).

“Where a defendant seeks to vacate a default pursuant to CPLR 5015(a)(3) based on intrinsic fraud, he or she must establish a reasonable excuse for the default and a potentially meritorious defense to the action” (Soundview Home Loan Trust 2006–OPT1 v Chiarelli, 186 AD3d 1553, 1554;  see Bank of Am., N.A. v. Anderson, 216 AD3d 890, 891).  Here, the defendants' assertions that the plaintiff obtained the order and judgment of foreclosure and sale through the submission of a fraudulent document amounted to an allegation of intrinsic fraud (see Soundview Home Loan Trust 2006–OPT1 v Chiarelli, 186 AD3d at 1554;  U.S. Bank, N.A. v. Robinson, 168 AD3d 1120, 1121).  Further, the defendants failed to demonstrate a reasonable excuse for their default in opposing the plaintiff's motion, inter alia, for summary judgment on the complaint insofar as asserted against Jack and for leave to enter a default judgment against Marlene, as they offered only conclusory and uncorroborated claims of law office failure (see Deutsche Bank Natl. Trust Co. v Singh, 242 AD3d 704;  Cross v. Caterers, 241 AD3d 1263, 1263).  Moreover, the defendants failed to offer any excuse for Marlene's default in answering the complaint or appearing in the action (see U.S. Bank, N.A. v. Gadson, 181 AD3d 748, 749;  Wells Fargo Bank, N.A. v. Shatles, 157 AD3d 750, 751).  “In light of the lack of a reasonable excuse, it is unnecessary to determine whether the plaintiff demonstrated the existence of a potentially meritorious cause of action” (Deutsche Bank Natl. Trust Co. v Singh, 242 AD3d at 706 [internal quotation marks omitted];  see U.S. Bank, N.A. v. Gadson, 181 AD3d at 749).  Accordingly, the Supreme Court properly denied that branch of the defendants' motion which was pursuant to CPLR 5015(a)(3) to vacate the order and judgment of foreclosure and sale.

Furthermore, the Supreme Court properly denied that branch of the defendants' motion which was, in effect, pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them on the ground that the plaintiff failed to comply with RPAPL 1304.  Since the defendants failed to oppose the plaintiff's prior motion, inter alia, for summary judgment on the complaint insofar as asserted against Jack, and did not seek to vacate so much of the order dated September 11, 2017, as granted that branch of the plaintiff's motion, Jack is precluded from raising the plaintiff's alleged failure to comply with the notice provisions of RPAPL 1304 as a defense to this action (see Nationstar Mtge., LLC v. Lewis, 238 AD3d 777, 779;  Wells Fargo Bank, N.A. v. Laronga, 219 AD3d 1559, 1561).  Moreover, since Marlene failed to move to vacate her default in answering the complaint or appearing, she is also precluded from arguing that the plaintiff failed to comply with the provisions of RPAPL 1304 on that basis (see Ocwen Loan Servicing, LLC v Coles, 223 AD3d 678, 680;  Bank of Am., N.A. v. Carapella, 218 AD3d 631).

The plaintiff's remaining contentions either need not be reached in light of our determination, are improperly raised for the first time on appeal, or are without merit.

DUFFY, J.P., WOOTEN, LOVE and HOM, JJ., concur.

2023–07706 DECISION & ORDER ON MOTION

Branch Banking and Trust Company, respondent,

v Jack A. Cohen, etc., et al., appellants, et al.,

defendants.

(

/11)

Motion by the respondent to dismiss the appeal on the ground that the dismissal of a prior appeal for failure to timely perfect precludes consideration of the issues to be raised on the appeal from the order dated March 14, 2023, pursuant to Bray v. Cox (38 N.Y.2d 350), or, in the alternative, to extend the time to serve and file a brief.  By decision and order on motion of this Court dated August 16, 2024, the branch of the motion which is to dismiss the appeal was held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the submission of the appeal, it is

ORDERED that the branch of the motion which is to dismiss the appeal is denied.

DUFFY, J.P., WOOTEN, LOVE and HOM, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court