Reverse Mortg. Solutions, Inc. v. Lawrence

200 A.D.3d 1146

159 N.Y.S.3d 526

REVERSE MORTGAGE SOLUTIONS, INC., Appellant,

v.Ronald G. LAWRENCE Jr., Respondent, et al., Defendants.

531918

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

Calendar Date: October 15, 2021

Decided and Entered: December 2, 2021

Robertson, Anschutz, Schneid, Crane & Partners, PLLC, Westbury (Edward Rugino of counsel), for appellant.

Law Office of Ellen S. Ross, Johnstown (Ellen S. Ross of counsel), for respondent.

Before: Egan Jr., J.P., Clark, Aarons, Pritzker and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER

Egan Jr., J.P.

Appeal from an order of the Supreme Court (Kupferman, J.), entered September 5, 2019 in Fulton County, which granted defendant Ronald G. Lawrence Jr.’s motion to, among other things, vacate a judgment of foreclosure and sale.

In 2012, defendant Ronald G. Lawrence Jr. (hereinafter defendant) executed a home equity conversion mortgage, also known as a reverse mortgage, to secure a note for a maximum principal amount of $120,000. The terms required defendant to pay all taxes and other charges on the mortgaged property and provided that, should he fail to do so, the lender could make the payments and, with the approval of the Secretary of Housing and Urban Development, require immediate payment in full. Defendant failed to pay certain taxes on the property and, in 2015, plaintiff, the assignee of the mortgage, made the required payments and accelerated payment of the entire debt. Plaintiff then commenced this action to foreclose on the mortgage and, upon defendant's default, obtained a judgment of foreclosure and sale in 2018. The ensuing referee's sale ended with plaintiff purchasing the property as the highest bidder.

Defendant thereafter moved to, among other things, vacate the judgment of foreclosure and sale and set aside the referee's deed. After hearing oral argument on the motion, Supreme Court (J. Sise, J.) rendered a decision from the bench in which it determined that defendant was entitled to vacatur and restored the matter to the trial calendar. Plaintiff appeals from the written order of Supreme Court (Kupferman, J.) effectuating that decision.

We affirm. First, Supreme Court and the parties primarily addressed defendant's motion as one to vacate a default pursuant to CPLR 5015(a)(1), which requires defendant "to establish a reasonable excuse for the default and the existence of a meritorious defense" ( Qiang Tu v. Li Shen, 190 A.D.3d 1125, 1126, 139 N.Y.S.3d 711 [2021] ; see Bank of N.Y. v. Richards, 192 A.D.3d 1228, 1229, 143 N.Y.S.3d 708 [2021] ). A request for vacatur under CPLR 5015(a)(1) may also be deemed as one pursuant to CPLR 317, however, which does not demand a reasonable excuse for the default and entitles the moving party to vacatur within a year of learning of the entry of a judgment where he or she was not personally served with process, did not receive notice of the action in time to defend and has a meritorious defense (see CPLR 317 ; Eugene Di Lorenzo, Inc. v. A.C. Dutton Lbr. Co., 67 N.Y.2d 138, 142–143, 501 N.Y.S.2d 8, 492 N.E.2d 116 [1986] ; Gonzalez v. City of New York, 65 A.D.3d 569, 570, 883 N.Y.S.2d 599 [2009] ; Executive Motor Car Inc. v. Allen, 211 A.D.2d 871, 871–872, 621 N.Y.S.2d 212 [1995] ; Pena v. Mittleman, 179 A.D.2d 607, 609–610, 579 N.Y.S.2d 359 [1992] ).

Defendant here was not personally served with process, but the record contains an affidavit of service that constitutes prima facie evidence that he was properly served via personal delivery of the summons and complaint to his roommate and mailing of an additional copy to him (see CPLR 308[2] ; Cotter v. Dukharan, 110 A.D.3d 1331, 1332–1333, 973 N.Y.S.2d 494 [2013] ). He denied learning about the action from his roommate, and his roommate averred that she had never told him about receiving the summons and complaint (compare McCord v. Larsen, 132 A.D.3d 1115, 1117, 18 N.Y.S.3d 458 [2015], with Bedessee Imports, Inc. v. Najjar, 170 A.D.3d 640, 641, 95 N.Y.S.3d 577 [2019] ). Nevertheless, the affidavit of service also "created a presumption of proper mailing and of receipt," and that presumption was not overcome by defendant's broader, bare assertion that he lacked notice ( Cavalry Portfolio Servs., LLC v. Reisman, 55 A.D.3d 524, 525, 865 N.Y.S.2d 286 [2008] ; see Engel v. Lichterman, 62 N.Y.2d 943, 944–945, 479 N.Y.S.2d 188, 468 N.E.2d 26 [1984] ; C & H Import & Export, Inc. v. MNA Global, Inc., 79 A.D.3d 784, 785–786, 912 N.Y.S.2d 428 [2010] ). Defendant therefore failed to establish that he had either the reasonable excuse for default required by CPLR 5015(a)(1) or the lack of notice of the action required by CPLR 317 (see Bedessee Imports, Inc. v. Najjar, 170 A.D.3d at 641–642, 95 N.Y.S.3d 577 ; Cotter v. Dukharan, 110 A.D.3d at 1333, 973 N.Y.S.2d 494 ).

Having said that, we nonetheless conclude that Supreme Court properly granted the relief requested. It is well established that both the trial court and this Court have inherent power to vacate a "judgment[ ] ‘for sufficient reason and in the interests of substantial justice’ " beyond the grounds set forth in CPLR 5015 ( State of New York v. Moore, 179 A.D.3d 1162, 1162–1163, 114 N.Y.S.3d 781 [2020], quoting Woodson v. Mendon Leasing Corp., 100 N.Y.2d 62, 68, 760 N.Y.S.2d 727, 790 N.E.2d 1156 [2003] ; accord Matter of Braunstein, 194 A.D.3d 1165, 1166, 148 N.Y.S.3d 517 [2021] ; see State of New York Mtge. Agency v. Braun, 182 A.D.3d 63, 78, 119 N.Y.S.3d 522 [2020] ). Whether to vacate a prior order or judgment "is addressed to the court's ‘sound discretion, subject to reversal only where there has been a clear abuse of that discretion’ " ( Pritchard v. Curtis, 101 A.D.3d 1502, 1503, 957 N.Y.S.2d 440 [2012], quoting Maddux v. Schur, 53 A.D.3d 738, 739, 861 N.Y.S.2d 814 [2008] ; see Matter of Braunstein, 194 A.D.3d at 1166, 148 N.Y.S.3d 517 ). Further, "[i]n exercising its discretion, the ... court should ‘consider the facts of the particular case, the equities affecting each party and others affected by the judgment or order, and the grounds for the requested relief’ " ( Nash v. Port Auth. of N.Y. & N.J., 22 N.Y.3d 220, 226, 980 N.Y.S.2d 880, 3 N.E.3d 1128 [2013], quoting 10 Weinstein–Korn–Miller, N.Y. Civ Prac ¶ 5015.03; see Hodge v. Development at Helderberg Meadows, LLC, 114 A.D.3d 1122, 1123, 981 N.Y.S.2d 463 [2014] ).

Defendant points out that the mortgage affords him, with certain exceptions that are not relevant here, the right to correct the conditions that caused acceleration of the entire debt and, "even after foreclosure proceedings are instituted," obtain reinstatement of the mortgage. The mortgage further specifies that defendan...