Appellate Division of the Supreme Court of New York, 2016

IMC Mortgage Co. v. Vetere

Appellate Division of the Supreme Court of New York · Decided September 14, 2016 · Rivera, Leventhal, Hinds-Radix, Nelson

142 A.D.3d 954; 37 N.Y.S.3d 329

Cases that cite this one

15 later published cases cite this decision.

United Financial Casualty Company v. Morales (District Court, D. New Mexico 2021)
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U.S. Bank N.A. v. Leontakianakos (Appellate Division of the Supreme Court of New York 2025)
Deutsche Bank Natl. Trust Co. v. Futerman (Appellate Division of the Supreme Court of New York 2024)
Globe Trade Capital, LLC v. Hoey (Appellate Division of the Supreme Court of New York 2021)
Lehman Bros. Bank v. Hickson (Appellate Division of the Supreme Court of New York 2020)
Matter of Treyvone A. (Manuel R.) (Appellate Division of the Supreme Court of New York 2020)
Chase Manhattan Bank v. Nath (Appellate Division of the Supreme Court of New York 2018)
Kondaur Capital Corp. v. Stewart (Appellate Division of the Supreme Court of New York 2018)
Eastern Sav. Bank, FSB v. Tromba (Appellate Division of the Supreme Court of New York 2017)
Wall Street Mortgage Bankers, Ltd. v. Rodgers (Appellate Division of the Supreme Court of New York 2017)
US Bank National Ass'n v. Galloway (Appellate Division of the Supreme Court of New York 2017)
Greene v. Rachlin (Appellate Division of the Supreme Court of New York 2017)
Wells Fargo Bank, N.A. v. Bachmann (Appellate Division of the Supreme Court of New York 2016)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion

In an action to foreclose a mortgage, the defendant Margaret Vetere appeals from an order of the Supreme Court, Suffolk County (Tarantino, Jr., J.), dated March 3, 2015, which denied her motion, inter alia, pursuant to CPLR 5015 to vacate a judgment of foreclosure and sale of the same court (Dunn, J.), entered October 6, 2000, upon her failure to appear or answer the complaint.

Ordered that the order is affirmed, with costs.

The Supreme Court properly denied the motion of the de *955 fendant Margaret Vetere (hereinafter the appellant), inter alia, pursuant to CPLR 5015 to vacate a judgment of foreclosure and sale entered upon her failure to appear or answer. The appellant failed to demonstrate her entitlement to vacatur pursuant to CPLR 5015 (a) (4). While the appellant contends that her codefendant was not properly served with process, she does not have standing to contest the validity of service of process on her codefendant because “[t]he defense of improper service of process in a foreclosure action is personal in nature and may only be raised by the party improperly served” (NYCTL 1996-1 Trust v King, 13 AD3d 429, 430 [2004]; see Wells Fargo Bank, N.A. v Bowie, 89 AD3d 931, 932 [2011]; Home Sav. of Am. v Gkanios, 233 AD2d 422, 423 [1996]).

Additionally, the appellant failed to demonstrate her entitlement to vacatur pursuant to CPLR 5015 (a) (2). While she submitted evidence in support of her motion that she claimed was newly discovered, “[e]vidence which is a matter of public record is generally not deemed new evidence which could not have been discovered with due diligence before trial” (Federated Conservationists of Westchester County v County of Westchester, 4 AD3d 326, 327 [2004]). In any event, the appellant failed to demonstrate that the newly discovered evidence “would probably have produced a different result” (CPLR 5015 [a] [2]; see Federated Conservationists of Westchester County v County of Westchester, 4 AD3d at 327).

Further, the appellant 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, and here the appellant’s delay in moving to vacate the judgment of foreclosure and sale was unreasonable (see Dimery v Ulster Sav. Bank, 82 AD3d 1034, 1034 [2011]; Bank of N.Y. v Stradford, 55 AD3d 765, 765 [2008]). In any event, the appellant failed to establish that the plaintiff engaged in any fraud, misrepresentation, or other misconduct warranting vacatur of the judgment (see Summitbridge Credit Invs., LLC v Wallace, 128 AD3d 676, 677-678 [2015]).

The appellant’s remaining contentions are without merit.

Rivera, J.P., Leventhal, Hinds-Radix and Brathwaite Nelson, JJ., concur.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.