ROSICKI, ROSICKI & ASSOC. Attys. For Plaintiff.
JOSEPH & TERESA GUARINO Defendants Pro Se.
Thomas F. Whelan, J.
ORDERED that this motion (#003) by the plaintiff for an order vacating the judgment of foreclosure and sale dated December 14, 2009 is considered under CPLR 5015 and is denied.
This uncontested mortgage foreclosure action was commenced in December of 2007 and was concluded by the issuance and entry of a judgment in December of 2009. No answer was served by any of the named defendants and no non-answering appearances were interposed. The sale of the mortgaged property contemplated by the judgment was, however, not conducted.
By the instant motion (#003), the plaintiff seeks an order vacating the judgment it obtained by its successful prosecution of its claims for foreclosure and sale of the mortgaged premises. The motion is opposed by defendant, Joseph M. Guarino. However, the merits of the claims advanced in his opposing papers shall not be considered by the court since Mr. Guarino is a party in default in this action in which a judgment against him and his property has been entered and remains in full force and effect. Absent a vacatur of his default, which is not requested, Mr. Guarino is without authority to oppose otherwise participate on this motion (see CPLR 3215[f]; U.S. Bank Natl. Ass'n v Gonzalez, 99 A.D.3d 694, 952 N.Y.S.2d 59 [2d Dept 2012]; Deutsche Bank Trust Co., Am. v Stathakis, 90 A.D.3d 983, 935 N.Y.S.2d 651 [2d Dept 2011]; Holubar v Holubar, 89 A.D.3d 802, 934 N.Y.S.2d 710 [2d Dept 2011]; McGee v Dunn, 75 A.D.3d 624, 624, 906 N.Y.S.2d 74 [2d Dept 2010]; see also Unsettled Times Make Well-Settled Law: Recent Developments in New York State's Residential Mortgage Foreclosure Statutes and Case Law ", 76 Albany Law Review 1085, 1114 [2012-2013]).
The reason advanced by the plaintiff as the basis for the relief requested is its purported inability to comply with affirmation requirements imposed upon its counsel under the terms of Administrative Orders 548-10 and 431-11. These highly unusual Administrative Orders were adopted and implemented following the dissemination of widely publicized national media accounts of misdeeds in the preparation of foreclosure papers by mortgagees in states other than New York. Concern on the part of court administrators over the veracity of alleged facts and the propriety of the procedures employed in the preparation of affidavits of merit submitted in residential New York foreclosure actions was the apparent basis for the issuance of the Administrative Orders numbered 548/10 and 436/11. These orders or rules, as they are sometimes referred to, impose vouching requirements upon counsel for foreclosing plaintiffs in all foreclosure cases in which a sale has not yet occurred. The plaintiff's counsel must independently verify the accuracy of the notarizations contained in the supporting documents filed with the foreclosure action upon application for the final judgment or, if all ready issued, prior to the sale. While counsel's compliance therewith has been held to be mandatory (see U.S. Bank Natl. Assoc. v Eaddy, 109 A.D.3d 908, 971 N.Y.S.2d 336 [2d Dept 2013]), the affirmation itself has also been held to be non-substantive in nature (see LaSalle Bank, NA v Pace, 100 A.D.3d 970, 955 N.Y.S.2d 161 [2d Dept 2012]).
In its moving papers, the plaintiff asserts that it is unable to satisfy the affirmation "vouching" requirements although all previously alleged facts regarding the obligor defendants' payment defaults "are unchanged". The plaintiff thus intends to have a new affidavit of merit executed by its agent to facilitate the preparation of the attorney's affirmation. For reasons not apparent from the moving papers, the plaintiff believes that a vacatur of the judgment previously awarded to it some four years ago is necessary.
The court, however, finds this application to be in conflict with well established legal maxims of finality and with fundamental principles governing the independent adjudication of cases and wasteful of the extremely limited judicial resources available to state trial courts.
"It is elementary that a final judgment or order represents a valid and conclusive adjudication of the parties' substantive rights..." (Da Silva v Masso, 76 N.Y.2d 436, 440, 560 N.Y.S.2d 109 ; see Matter of Huie, 20 N.Y.2d 568, 285 N.Y.S.2d 610 ). Legal maxims such as law of the case and collateral estoppel serve to protect the sanctity and finality of litigated judicial orders and judgments, while the doctrine of res judicata does the same for such orders and those issued upon default (see TD Bank, N.A. v Talia Prop., Inc., 110 A.D.3d 1057, 973 N.Y.S.2d 789 [2d Dept 2013]; Richter v Sportsman Prop., Inc., 82 A.D.3d 733, 918 N.Y.S.2d 511 [2d Dept 2011]; 83-17 Broadway Corp. v Debcon Fin. Serv., Inc., 39 A.D.3d 583, 835 N.Y.S.2d 602 [2d Dept 2007]; Rosendale v Citibank, 262 A.D.2d 628, 691 N.Y.S.2d 901 [2d Dept 1999]). These maxims are the root of the finality doctrine which has been characterized as: "[a] policy against relitigation of adjudicated disputes [that] is strong enough generally to bar a second action even where further investigation of the law or facts indicates that the controversy has been erroneously decided, whether due to oversight by the parties or error by the courts " (Reilly v Reid, 45 N.Y.2d 24, 407 N.Y.S.2d 645  [emphasis added], citing Deposit Bank v Frankfort, 191 U.S. 499, 510-511, 24 S.Ct.154 ). "Considerations of judicial economy as well as fairness to the parties mandate, at some point, an end to litigation. Afterthoughts or after discoveries however understandable and morally forgivable are generally not enough to create a right to litigate anew" (Reilly v Reid, 45 N.Y.2d 24, 28, supra). Vacatur of final adjudicatory documents, such as an order or judgment and a re-litiagtion of the causes determined therein, is generally precluded by the the finality doctrine.
In addition to determinations affected by errors, adjudications influenced by instances of perjury do not warrant a re-adjudication of the case upon the invocation of the court's inherent power to vacate a judgment on the grounds of fraud. In Jacobowitz v Herson (269 NY 130, 197 N.E. 169 ), the Court of Appeals described the nature of this rule and the reasons underlying as follows:
The authorities are uniform in holding that an action in equity will not lie to set aside a judgment in an action for intrinsic fraud, that is, for perjury or false swearing on the trial. Pomeroy states in his Equity Jurisprudence (Vol. V, § 2077, p. 4683) the rule as follows: The courts hold that perjury is intrinsic fraud and that therefore it is not ground for equitable relief against a judgment resulting from it. We have seen that the fraud which warrants equity in interfering with such a solemn thing as a judgment must be fraud in obtaining the judgment, and must be such as prevents the losing party from having an adversary trial of the issue. Perjury is a fraud in obtaining the judgment, but it does not prevent an adversary trial. * * * However, public policy seems to demand that there be an end to litigation. If perjury were accepted as a ground for relief, litigation might be endless; the same issues would have to be tried repeatedly.
This State is committed to the rule that the perjured testimony of the successful party or his witnesses at the trial, even where the false testimony was procured by a conspiracy, is not sufficient ground for vacating a domestic judgment or enjoining its enforcement. (Ross v. Wood, 70 NY 8;
Gitler v. Russian Co., 124 A.D. 273; Standard Fashion Co. v. Thompson, 137
A.D. 588; Crouse v. McVickar, 207 NY 213.) As before stated, the weight of authority in this country is to the same effect. (Freeman on the Law of Judgments [Vols. 1 and 3, 5th ed.], §§ 235, 1241, 1242.) (See, also,
Metcalf v. Gilmore, 59 N.H. 417; Mahoney v. State Ins. Co., 133 Iowa, 570;
Riley v. Murray, 8 Ind. 354; El Capitan Land & Cattle Co. v. Lees, 13 N.M. 407).
Inherent powers of a court to vacate its own orders and judgments on grounds of fraud have thus been viewed as extending only to extrinsic fraud and not to intrinsic fraud, such as perjury at trial (see Lockett v Juviler, 65 N.Y.2d 182, 490 N.Y.S.2d 764 ; Jacobowitz v Herson, 268 NY 130, supra; Matter of Holden, 271 NY 212, 218, 2 N.E.2d 631 ). To justify a court in setting aside and vacating a judgment on the ground of fraud, the fraud complained of must have been "extrinsic", that is, practiced in the very act of obtaining the judgment in such a way that a party was prevented from fully and fairly litigating the matter (see Matter of Holden, 271 NY 212, supra; Citimortgage, Inc. v Brown, 111 ...