Submitted - February 13, 2018
L. Singer, P.C., Melville, NY, for appellant.
Lord LLP, New York, NY (R. James DeRose III, Casey B. Howard,
and Samantha Ingram of counsel), for respondent.
C. BALKIN, J.P. LEONARD B. AUSTIN SANDRA L. SGROI VALERIE
BRATHWAITE NELSON, JJ.
DECISION & ORDER
action to foreclose a mortgage, the defendant Prem Nath
appeals from an order of the Supreme Court, Rockland County
(Gerald E. Loehr, J.), dated August 25, 2015. The order
denied that defendant's motion to vacate a judgment of
foreclosure and sale of the same court (Alfred J. Weiner, J.)
entered March 2, 2011, and to dismiss the action for lack of
that the order is affirmed, with costs.
September 4, 1998, the defendant Prem Nath (hereinafter the
defendant) executed a promissory note in the amount of $500,
000 in favor of the Long Beach Mortgage Company (hereinafter
Long Beach). As security for the note, the defendant executed
a mortgage in favor of Long Beach encumbering real property
located in Blauvelt. The defendant defaulted on the loan by
failing to make the monthly installment payment due January
1, 2001. Long Beach assigned the mortgage to the plaintiff,
Chase Manhattan Bank. In June 2001, the plaintiff commenced
this action to foreclose the mortgage against the defendant,
among others. The defendant filed an answer in which he
generally denied all of the allegations in the complaint and
asserted three affirmative defenses relating, inter alia, to
his attempt to make payment of the mortgage note and
reinstate the loan.
protracted litigation, including a chapter 7 bankruptcy
proceeding (see1978 Bankruptcy Code [11 USC] §
701 et seq.), on March 18, 2010, the defendant,
represented by counsel, executed documents entitled
''Settlement Agreement and Releases''
(hereinafter the settlement agreement) and "Loan
Modification Agreement" (hereinafter the loan
modification) with "LaSalle Bank National Association,
as Indenture Trustee for CSFB Trust 2002-NP14"
(hereinafter LaSalle Bank), by Select Portfolio Servicing
(hereinafter SPS), its servicing agent. The settlement
agreement stated, inter alia, that the plaintiff had assigned
the note and mortgage to LaSalle Bank, and that LaSalle Bank,
by SPS, and the defendant wished to settle the foreclosure
action. Further, the settlement agreement provided that in
the event that the defendant did not make the first three
payments in accordance with the loan modification, he agreed
and consented to, inter alia, waive any and all defenses to
the foreclosure action, the withdrawal and/or dismissal of
his answer, and the entry of a judgment of foreclosure and
sale. It is undisputed that the defendant failed to make any
payment pursuant to the loan modification.
2010, the defendant moved to rescind the loan modification on
the grounds of mutual mistake and anticipatory repudiation by
the plaintiff, and the plaintiff cross-moved, inter alia, for
leave to enter a judgment of foreclosure and sale. In an
order entered December 13, 2010, the Supreme Court (Alfred J.
Weiner, J.) denied the defendant's motion to rescind the
loan modification and granted the plaintiff's cross
motion. The court issued a judgment of foreclosure and sale
in favor of the plaintiff entered March 2, 2011.
thereafter, the defendant moved to "renew [the]
plaintiff's cross motion" and to vacate the judgment
of foreclosure and sale (hereinafter the first motion to
vacate), arguing, in effect, that the plaintiff lacked
standing. In an order entered July 28, 2011, the Supreme
Court (Alfred J. Weiner, J.) denied the first motion to
vacate. The court found that the defendant did not offer
reasonable justification for failing to offer "the
additional facts" in opposition to the cross motion. The
court stated that the additional facts were available at the
time of the cross motion and were discoverable with
appropriate diligence. The defendant took an appeal from that
order, but did not perfect the appeal.
the defendant filed a chapter 13 bankruptcy petition (see
1978 Bankruptcy Code [11 USC] ch 13), which was ultimately
dismissed. A foreclosure sale was scheduled for December 17,
2014. On or about December 9, 2014, the defendant again
moved, inter alia, to vacate the judgment of foreclosure and
sale (hereinafter the second motion to vacate). Shortly
thereafter, before the plaintiff filed opposition papers, the
defendant filed a second chapter 7 bankruptcy petition, which
led to the cancellation of the scheduled foreclosure sale.
The automatic stay in the chapter 7 bankruptcy proceeding was
eventually lifted. In the order appealed from dated August
25, 2015, the Supreme Court (Gerald E. Loehr, J.) denied the
second motion to vacate. The court noted that the second
motion to vacate was based on essentially the same ground as
the first motion to vacate, that is, the plaintiff's lack
of standing. The court noted that the second motion to vacate
was denied "essentially for the same reasons"
stated in the decisions and orders of Justice Weiner and the
Bankruptcy Court. The defendant appeals, and we affirm.
agree with the Supreme Court's denial of that branch of
the second motion to vacate which was to vacate the judgment
of foreclosure and sale, since that branch of the motion was
premised either on the same grounds asserted in the
defendant's first motion to vacate, which was denied by
the court in an order from which the defendant did not
perfect his appeal, or on grounds that were apparent at the
time that the defendant made the first motion, but had not
been asserted in the first motion (see EMC Mtge. Corp. v
Asturizaga, 150 A.D.3d 824, 825; HSBC Bank USA, N.A.
v Legros, 122 A.D.3d 799, 800; Eastern Sav. Bank,
FSB v Brown, 112 A.D.3d 668, 670; Discover Bank
v Qader, 105 A.D.3d 892).
the defendant's contention that the plaintiff
fraudulently obtained the judgment of foreclosure and sale by
making false allegations in the complaint about its standing
and capacity to commence the action and by submitting
fraudulent documents to the court amount to an allegation of
intrinsic fraud (see PennyMac Corp. v Weiss, 152
A.D.3d 712, 714; US Bank N.A. v Galloway, 150 A.D.3d
1174, 1175; U.S. Bank, N.A. v Peters, 127 A.D.3d
742, 742-743). The defendant failed to provide any evidence
of fraud, mistake, inadvertence, surprise, or excusable
neglect that would constitute a basis ...