Wells Fargo Bank, N.A. v. Braun , 998 N.Y.S.2d 420 ( 2014 )

Wells Fargo Bank, N.A. v Braun (2014 NY Slip Op 08424)

Wells Fargo Bank, N.A. v Braun

2014 NY Slip Op 08424

Decided on December 3, 2014

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 3, 2014 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
RUTH C. BALKIN, J.P.
L. PRISCILLA HALL
LEONARD B. AUSTIN
BETSY BARROS, JJ.

2013-01724
(Index No. 4697/07)

[*1]Wells Fargo Bank, N.A., respondent,

v

Moshe Braun, et al., appellants, et al., defendant.

Phillip J. Murphy, New City, N.Y., for appellants.

Hogan Lovells US LLP, New York, N.Y. (David Dunn, Chava Brandriss, and Heather R. Gushue of counsel), for respondent.

DECISION & ORDER

In an action to foreclose a mortgage, the defendants Moshe Braun and Yehudas Braun appeal, as limited by their brief, from stated portions of an order of the Supreme Court, Rockland County (Garvey, J.), dated August 22, 2012, which, inter alia, denied that branch of their motion which was pursuant to CPLR 5015(a)(3) to vacate a judgment of foreclosure and sale of the same court entered July 30, 2008, upon their failure to appear or answer the complaint.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The Supreme Court properly denied that branch of the motion of the defendants Moshe Braun and Yehudas Braun (hereinafter together the defendants) which was to vacate a judgment of foreclosure and sale pursuant to CPLR 5015(a)(3). Under the circumstances of this case, the defendants failed to move for relief pursuant to CPLR 5015(a)(3) within a reasonable time after entry of the judgment (see Indymac Bank, F.S.B. v Yano-Horoski, 107 AD3d 672; Bank of N.Y. v Stradford, 55 AD3d 765, 765). In any event, the defendants failed to provide a reasonable excuse for the default, which is required when a CPLR 5015(a)(3) motion alleges intrinsic fraud, i.e., that the allegations in the complaint are false (see New Century Mtge. Corp. v Corriette, 117 AD3d 1011, 1012; Bank of N.Y. v Stradford, 55 AD3d at 765-766; Bank of N.Y. v Lagakos, 27 AD3d 678, 679).

In light of our determination, we need not address the parties' remaining contentions.

BALKIN, J.P., HALL, AUSTIN and BARROS, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court