Rosicki, Rosicki & Associates, P.C., Plainview, NY (Lijue
T. Philip, Andrew Morganstern, and Jessica Bookstaver of
counsel), for appellant.
Stoll Bader & Nadler, P.C., New York, NY (Pankaj Malik of
counsel), for respondent.
M. LEVENTHAL, J.P., L. PRISCILLA HALL, SANDRA L. SGROI,
COLLEEN D. DUFFY, JJ.
DECISION & ORDER
action to foreclose a mortgage, the plaintiff appeals from an
order of the Supreme Court, Queens County (Grays, J.), dated
March 16, 2015, which denied its motion pursuant to CPLR
5015(a) to vacate an order of the same court dated April 29,
2013, dismissing the complaint or, in the alternative, in the
interest of substantial justice, for leave to renew its
motion for an order of reference.
that the order dated March 16, 2015, is affirmed, with costs.
November 2005, the defendant Valene Josephs-Byrd (hereinafter
the defendant) executed an adjustable rate note, pursuant to
which she promised to repay the sum of $292, 000 that she
borrowed from Fremont Investment and Loan (hereinafter
Fremont). The note was secured by a mortgage on property
owned by the defendant's grandmother in Queens Village,
dated November 16, 2005, and was given to Mortgage Electronic
Registration Systems, Inc. (hereinafter MERS), as nominee for
Fremont. In October 2006, HSBC Bank USA (hereinafter HSBC)
commenced this foreclosure action alleging that the defendant
defaulted on her loan repayment obligations. According to
HSBC, in April 2008, the subject mortgage was assigned to it
defendant did not appear in the action, interpose an answer,
or otherwise move with respect to the complaint. In 2007,
HSBC moved for an order of reference pursuant to RPAPL 1321.
In an order entered May 15, 2007, the Supreme Court denied
HSBC's motion without prejudice to renew upon submission
of proper papers, including the demand letter forwarded to
the defendant. Thereafter, HSBC filed a new motion for an
order of reference and included, in support, the affidavit of
the supervisor of Fidelity National Foreclosure, which
referenced an entirely different matter and a different party
than the defendant. In October 2007, the Supreme Court denied
that second motion without prejudice, stating that proper
documentation or an explanation of the various exhibits
submitted in support of the motion must be provided.
December 2008 the defendant moved to vacate her default. The
Supreme Court subsequently marked the motion off the
calendar. Thereafter, pursuant to CPLR 3408, several
settlement conferences were held in connection with the
action. In an order dated January 10, 2013 (hereinafter the
January 2013 order), the Supreme Court determined that HSBC
had not complied with an earlier order issued in September
2012 and directed HSBC to appear at a status conference on
April 25, 2013, file a foreclosure affirmation pursuant to
Administrative Order 431/11, and move for an order of
reference by April 25, 2013. The January 2013 order also
warned HSBC that the failure to comply may be grounds for
dismissal without prejudice.
although HSBC Bank appeared at the April 25, 2013, status
conference, it had not fully complied with the January 2013
order. In an order dated April 29, 2013 (hereinafter the 2013
order of dismissal), the Supreme Court dismissed the action
without prejudice, and cancelled and discharged all notices
of pendency filed in the matter.
fifteen months later, in July 2014, HSBC moved to vacate the
2013 order of dismissal pursuant to CPLR 5015(a), or, in the
alternative, in the interest of substantial justice, for
leave to renew its motion for an order of reference. In the
order appealed from, dated March 16, 2015, the Supreme Court
denied the motion on the ground, inter alia, that HSBC failed
to provide a reasonable excuse for its failure to comply with
the January 2013 order. HSBC appeals. We affirm.
5015(a) authorizes a court to relieve a party from an order
or judgment, on motion, based on the existence of specified
grounds. These grounds include excusable default
(see CPLR 5015[a]); newly discovered evidence
(see CPLR 5015[a]); fraud, misrepresentation, or
other misconduct of an adverse party (see CPLR
5015[a]); lack of jurisdiction (see CPLR
5015[a]); or upon the reversal, modification or vacatur of
a prior judgment or order upon which it is based
(see CPLR 5015[a]). Here, HSBC did not provide a
reasonable excuse for its failure to comply with the January
2013 order or any other basis pursuant to CPLR 5015(a) for
vacatur of the 2013 order of dismissal (see, Monroe v
Monroe, 131 A.D.3d 1212, 1213; Katz v Marra, 74
A.D.3d 888, 890). Accordingly, the Supreme Court properly
denied the plaintiff's motion pursuant to CPLR 5015(a) to
vacate the 2013 order of dismissal.
also failed to establish any basis upon which to vacate the
2013 order of dismissal in the interest of substantial
justice (see Macias v New York City Tr. Auth., 240
A.D.2d 196; see e.g. Galasso, Langione & Botter, LLP
v Liotti, 81 A.D.3d 884, 885; Katz v Marra, 74
A.D.3d at 891). Although the Supreme Court retains
"inherent discretionary power to relieve a party from a
judgment or order for sufficient reason and in the interest
of substantial justice" (Galasso, Langione &
Botter, LLP v Liotti, 81 A.D.3d at 885; see Katz v
Marra, 74 A.D.3d at 890; see also Woodson v Mendon
Leasing Corp., 100 N.Y.2d 62, 68; Ladd v
Stevenson, 112 NY 325, 332), "[a] court's
inherent power to exercise control over its judgment is not
plenary, and should be resorted to only to relieve a party
from judgments taken through [fraud, ] mistake, inadvertence,
surprise or excusable neglect" (Matter of McKenna v
County of Nassau, Off. of County Attorney, 61 N.Y.2d
739, 742 [internal quotation marks omitted]; see Long Is.
Light. Co. v Century Indem. Co., 52 A.D.3d 383, 384;
Quinn v Guerra, 26 A.D.3d 872, 873).
HSBC failed to provide any evidence of fraud, mistake,
inadvertence, surprise, or excusable neglect (see Matter
of McKenna v County of Nassau, Off. of County Attorney,
61 N.Y.2d at 742; Long Is. Light. Co. v Century Indem.
Co., 52 A.D.3d at 384; Quinn v Guerra, 26
A.D.3d at 873) that would constitute a basis for vacatur of
the 2013 order of dismissal in the interest of substantial
justice. Indeed, the facts of the action militate against
vacatur of the 2013 order of dismissal. HSBC did not appeal
the 2013 order of dismissal, and it did not seek to reargue
the order so as to address any perceived error of law. HSBC
also never provided any explanation as to why it failed to
comply with the Supreme Court's earlier orders, or why it
delayed for more than a year before filing its motion to
vacate. In addition, HSBC made its two successive motions for
an order of reference in 2007, prior to the date it contends
the mortgage was assigned to it. Notably, denial of each of
those motions by the court was based on HSBC's failure to
provide proper documents in support of each motion (see
e.g. HSBC Bank USA, N.A. v Valentin, 72 A.D.3d 1027,
1029; HSBC Bank USA, N.A, v Betts, 67 A.D.3d 735,
736). Thus, the interest of substantial justice would not be
served by vacatur of the 2013 order of dismissal.
remaining contentions either need not be considered in light
of our ...