HSBC Bank USA, Nat'l Ass'n v. Walker

201 A.D.3d 795

162 N.Y.S.3d 82

HSBC BANK USA, NATIONAL ASSOCIATION, etc., respondent,

v.Conrad WALKER, appellant, et al., defendants.

2019–05487

Index No. 9362/08

Supreme Court, Appellate Division, Second Department, New York.

Submitted—November 8, 2021

January 19, 2022

IM Law Group, Cedarhurst, NY, for appellant.

Gross Polowy, LLC, Williamsville, NY (Douglas C. Weinert of counsel), for respondent.

FRANCESCA E. CONNOLLY, J.P., CHERYL E. CHAMBERS, SYLVIA O. HINDS–RADIX, ROBERT J. MILLER, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Conrad Walker appeals from an order of the Supreme Court, Queens County (Mojgan Cohanim Lancman, J.), dated March 22, 2019. The order denied that defendant's motion pursuant to CPLR 5015(a)(2), (3), and (4) to vacate a judgment of foreclosure and sale of the same court (Jeremy S. Weinstein, J.) entered March 14, 2018, and an order of reference of the same court (Diccia T. Pineda–Kirwan, J.) entered August 30, 2016.

ORDERED that the order dated March 22, 2019, is affirmed, with costs.

In 2008, the plaintiff commenced this action against the defendant Conrad Walker (hereinafter the defendant), among others, to foreclose a mortgage on real property located in Queens. The defendant neither answered the complaint or otherwise appeared in the action. In 2016, the plaintiff obtained an order of reference upon the defendant's default. In a judgment of foreclosure and sale entered March 14, 2018, the Supreme Court confirmed the referee's report and directed the sale of the subject premises.

In April 2019, the defendant moved pursuant to CPLR 5015(a)(2), (3), and (4) to vacate the order of reference and judgment of foreclosure and sale. In an order dated March 22, 2019, the Supreme Court denied the defendant's motion. The defendant appeals, and we affirm.

The Supreme Court properly denied that branch of the defendant's motion which was pursuant to CPLR 5015(a)(4) to vacate the order of reference and judgement of foreclosure and sale for lack of personal jurisdiction. The affidavit of the process server constituted prima facie evidence of proper service (see Nationstar Mtge., LLC v. Cohen, 185 A.D.3d 1039, 1040, 128 N.Y.S.3d 574 ; HSBC Bank USA, N.A. v. Whitter, 159 A.D.3d 942, 945, 74 N.Y.S.3d 285 ). To be entitled to vacatur of a default judgment under CPLR 5015(a)(4), a defendant must overcome the presumption raised by the process server's affidavit of service (see HSBC Bank USA v. Archer, 173 A.D.3d 984, 985, 104 N.Y.S.3d 150 ; HSBC Bank USA, N.A. v. Whitter, 159 A.D.3d at 945, 74 N.Y.S.3d 285 ). "Although bare and unsubstantiated denials are insufficient to rebut the presumption of service, a sworn denial of service containing specific facts generally rebuts the presumption of proper service established by the affidavit of service and necessitates a hearing" ( US Bank N.A. v. Cooper, 191 A.D.3d 1035, 1036, 143 N.Y.S.3d 76 [internal quotation marks omitted]). Here, the defendant failed to submit sufficient evidence to rebut the process server's affidavit (see U.S. Bank N.A. v. Cooper, 191 A.D.3d at 1036, 143 N.Y.S.3d 76 ; HSBC Bank USA v. Archer, 173 A.D.3d at 985, 104 N.Y.S.3d 150 ).

The Supreme Court also properly denied that branch of the defendant's motion which was pursuant to CPLR 5015(a)(2). In order to succeed on a motion pursuant to CPLR 5015(a)(2) to vacate an order or judgment on the ground of newly discovered evidence, the movant must establish, among other things, that the evidence could not have been discovered earlier through the exercise of due diligence (see U.S. Bank N.A. v. Eisler, 188 A.D.3d 1288, 1290, 132 N.Y.S.3d 820 ; Wall St. Mtge. Bankers, Ltd. v. Rodgers, 148 A.D.3d 1088, 1089, 49 N.Y.S.3d 753 ). Here, the defendant failed to demonstrate that the purportedly newly discovered evidence, consisting of, among other things, a bankruptcy petition filed in 2008 by the plaintiff's predecessor in interest and a settlement agreement from 2011 involving the plaintiff's former attorney, could not have been discovered earlier with the exercise of due diligence (see U.S. Bank N.A. v. Eisler, 188 A.D.3d at 1290, 132 N.Y.S.3d 820 ; Deutsche Bank Natl. Trust Co. v. Morris, 160 A.D.3d 613, 614, 70 N.Y.S.3d 856 ).

Moreover, the defendant failed to demonstrate his entitlement to relief pursuant to CPLR 5015(a)(3). Pursuant to CPLR 5015(a)(3), a court may relieve a party from a judgment or order upon the ground of fraud, misrepresentation, or other misconduct of an adverse party. The defendant's contention that the allegations in the complaint are false amounts to an allegation of intrinsic fraud, which requires the defendant to establish a reasonable excuse for the default and a potentially meritorious defense to the action (see ETrade Bank v. Ejenam, 188 A.D.3d 1004, 1006, 132 N.Y.S.3d 689 ; Capital One, N.A. v. Mc Cormack, 183 A.D.3d 644, 644, 121 N.Y.S.3d 627 ; Wells Fargo Bank Minn., N.A. v. Coletta, 153 A.D.3d 756, 757, 59 N.Y.S.3d 788 ; LaSalle Bank N.A. v. Oberstein, 146 A.D.3d 945, 945, 45 N.Y.S.3d 538 ). Here, since the defendant failed to present an excuse for his default, it was unnecessary to consider whether he presented a potentially meritorious defense, including lack of standing or failure to...