BANK TRUST v. APRILE (2026)

DECISION & ORDER

In an action to foreclose a mortgage, the defendant William Aprile appeals from an order of the Supreme Court, Suffolk County (Thomas F. Whelan, J.), dated July 10, 2024.  The order, insofar as appealed from, denied those branches of that defendant's motion which were pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against him and pursuant to CPLR 5015(a) or in the interest of justice to vacate so much of an order of the same court dated June 7, 2019, as granted the unopposed motion of Federal National Mortgage Association, inter alia, for leave to serve that defendant by publication and to appoint a guardian ad litem.

ORDERED that the order dated July 10, 2024, is affirmed insofar as appealed from, with costs.

In June 2018, the plaintiff's predecessor in interest, Federal National Mortgage Association (hereinafter FNMA), commenced this action against, among others, the defendant William Aprile (hereinafter the defendant) to foreclose a mortgage encumbering certain real property located in Suffolk County.  In May 2019, FNMA moved, ex parte, inter alia, for leave to serve the defendant by publication and to appoint a guardian ad litem.  By order dated June 7, 2019 (hereinafter the June 2019 order), the Supreme Court, among other things, granted FNMA's motion.  The plaintiff subsequently moved, inter alia, for leave to enter a default judgment against all nonappearing defendants and for an order of reference.  The defendant did not oppose the motion.  By order dated June 21, 2022, the court granted the plaintiff's motion and referred the matter to a referee to ascertain and compute the amount due to the plaintiff.

In March 2023, the defendant moved, among other things, pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against him on the grounds that the action was time-barred and for lack of personal jurisdiction and pursuant to CPLR 5015(a) or in the interest of justice to vacate so much of the June 2019 order as granted FNMA's unopposed motion, inter alia, for leave to serve the defendant by publication and to appoint a guardian ad litem.  The plaintiff opposed the motion.  By order dated July 10, 2024, the Supreme Court, among other things, denied those branches of the defendant's motion.  The defendant appeals.

The Supreme Court properly denied that branch of the defendant's motion which was pursuant to CPLR 5015(a) or in the interest of justice to vacate so much of the June 2019 order as granted FNMA's unopposed motion, inter alia, for leave to serve the defendant by publication and to appoint a guardian ad litem.  “A party seeking to vacate an order or judgment entered upon his or her default in opposing a motion must demonstrate both a reasonable excuse for the default and a potentially meritorious opposition to the motion” (CitiMortgage, Inc. v Ramlal, 238 AD3d 976, 977).  “Although a motion to vacate an order on the ground of excusable default must be made within one year after service of a copy of the order with written notice of entry upon the moving party (see CPLR 5015[a][1] ), the Supreme Court has the inherent authority to vacate an order in the interest of justice, even where the statutory one-year period under CPLR 5015(a)(1) has expired” (JPMorgan Chase Bank, N.A. v Baptiste, 188 AD3d 848, 850;  see HSBC Bank USA, N.A. v Gallo, 238 AD3d 1123, 1125).  However, “[a] court's inherent power to exercise control over its [orders and] judgments is not plenary, and should be resorted to only to relieve a party from [orders or] judgments taken through [fraud,] mistake, inadvertence, surprise or excusable neglect” (Matter of McKenna v County of Nassau, Off. of County Attorney, 61 NY2d 739, 742 [internal quotation marks omitted];  see Gutierrez v Hillside Hotel, LLC, 234 AD3d 672, 674).

Here, the defendant failed to set forth a reasonable excuse for his default (see Fidelity Bank v John, 208 AD3d 640, 641), and also failed to provide any evidence of fraud, mistake, inadvertence, surprise, or excusable neglect that would constitute a basis for vacatur of stated portions of the June 2019 order in the interest of substantial justice (see Zlobec v Bank of N.Y. Mellon, 241 AD3d 606, 611;  Aurora Loan Servs., LLC v Dorfman, 170 AD3d 786, 788).

The Supreme Court also properly denied dismissal of the complaint insofar as asserted against the defendant pursuant to CPLR 3211(a) on the ground that the action was time-barred.  Since the defendant never vacated his default in this action, he was precluded from asserting a statute of limitations defense (see Christiana Trust v Victor, 224 AD3d 869, 872;  Nestor I, LLC v Moriarty–Gentile, 179 AD3d 936, 938).

The defendant's remaining contentions need not be reached in light of our determination.

Accordingly, the Supreme Court properly denied those branches of the defendant's motion which were pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against him and pursuant to CPLR 5015(a) or in the interest of justice to vacate so much of the June 2019 order as granted FNMA's unopposed motion, among other things, for leave to serve the defendant by publication and to appoint a guardian ad litem.

DUFFY, J.P., WARHIT, VENTURA and OTTLEY, JJ., concur.