Bank of N.Y. Mellon v. Izquierdo

Bank of N.Y. Mellon v Izquierdo 2026 NY Slip Op 05511 September 30, 2026 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This decision is uncorrected and subject to revision before publication in the Official Reports. Bank of New York Mellon, etc., respondent, v Alida Izquierdo, et al., defendants, Marlon Izquierdo, appellant. Supreme Court of the State of New York, Appellate Division, Second Judicial Department Decided on September 30, 2026 2024-11303, (Index No. 711604/21) Angela G. Iannacci, J.P. Deborah A. Dowling Carl J. Landicino Laurence L. Love, JJ. Michael Kennedy Karlson, New York, NY, for appellant. Frenkel Lambert Weisman & Gordon, LLP, Bayshore, NY (Ruth O'Connor and Jonathan M. Cohen of counsel), for respondent. [*1] DECISION & ORDER In an action to foreclose a mortgage, the defendant Marlon Izquierdo appeals from an order of the Supreme Court, Queens County (Scott Dunn, J.), entered October 1, 2024. The order denied (1) that defendant's motion, inter alia, pursuant to CPLR 5015(a)(3) and (4) to vacate an order of the same court (Rudolph E. Greco, Jr., J.) dated June 12, 2018, a decision of the same court (Mojgan C. Lancman, J.) dated June 18, 2019, and an order and judgment of foreclosure and sale (one paper) of the same court (Mojgan C. Lancman, J.) entered January 21, 2020, to set aside the foreclosure sale of the subject property, to vacate a referee's deed dated June 27, 2023, and pursuant to CPLR 2201 to stay a related eviction proceeding, and (2) that defendant's separate motion, among other things, pursuant to CPLR 2201 to stay a related eviction proceeding. ORDERED that the appeal from so much of the order entered October 1, 2024, as denied that branch of the motion of the defendant Marlon Izquierdo which was pursuant to CPLR 5015(a)(3) and (4) to vacate the decision dated June 18, 2019, is dismissed, as no appeal lies from an order denying a motion to vacate a decision (see Manufacturers & Traders Trust Co. v Ahmed, 241 AD3d 1326, 1327); and it is further, ORDERED that the order entered October 1, 2024, is affirmed insofar as reviewed, and it is further, ORDERED that one bill of costs is awarded to the plaintiff. In November 2009, the plaintiff commenced this action against the defendant Marlon Izquierdo (hereinafter the defendant), among others, to foreclose a mortgage encumbering certain real property located in Elmhurst. In an order dated July 21, 2010, the Supreme Court, inter alia, granted the plaintiff's ex parte motion for an order of reference. Thereafter, by order dated February 1, 2017, the court directed dismissal of the action based upon the plaintiff's failure to comply with a status conference order. In June 2017, the plaintiff moved, among other things, pursuant to CPLR 5015(a) to vacate the orders dated July 21, 2010, and February 1, 2017, to restore the action to the active [*2]calendar, for leave to enter a default judgment against the defendant, and for an order of reference. The defendant opposed the plaintiff's motion, arguing, inter alia, that he timely answered the complaint and was not in default. In an order dated December 4, 2017, the Supreme Court, among other things, granted those branches of the plaintiff's motion which were to vacate the order dated February 1, 2017, and to restore the action to the active calendar. Subsequently, in an order dated June 12, 2018 (hereinafter the June 2018 order), the court, inter alia, granted those branches of the plaintiff's motion which were to vacate the order dated July 21, 2010, for leave to enter a default judgment against the defendant, and for an order of reference. The defendant did not appeal from the June 2018 order. Thereafter, the plaintiff moved, among other things, to confirm a referee's report and for a judgment of foreclosure and sale. The defendant opposed the plaintiff's motion. In a decision dated June 18, 2019, the court, inter alia, determined to grant the plaintiff's motion. In an order and judgment of foreclosure and sale entered January 21, 2020, the court, among other things, confirmed the referee's report and directed the sale of the subject property. The defendant did not appeal from the order and judgment of foreclosure and sale. A foreclosure sale was held on April 21, 2023, and a referee's deed dated June 27, 2023, conveyed the property to the winning bidder at the foreclosure sale. In May 2024, the defendant moved, inter alia, pursuant to CPLR 5015(a)(3) and (4) to vacate the June 2018 order, the decision, and the order and judgment of foreclosure and sale, to set aside the foreclosure sale of the property, to vacate the referee's deed, and pursuant to CPLR 2201 to stay a related eviction proceeding. In support, the defendant argued that a default judgment should not have been entered against him because he timely answered the complaint. In August 2024, the defendant separately moved, among other things, pursuant to CPLR 2201 to stay a related eviction proceeding. In an order entered October 1, 2024, the Supreme Court denied both motions. The defendant appeals. "'A judgment of foreclosure and sale . . . against a defendant is final as to all questions at issue between the parties, and concludes all matters of defense which were or might have been litigated in the foreclosure action'" (NYCTL 1998-2 Trust v AngelDocs, Inc., 237 AD3d 1210, 1211 [internal quotation marks omitted], quoting Nationstar Mtge., LLC v Coglietta, 189 AD3d 1435, 1436). "CPLR 5015(a)(3) permits a court to relieve a party from an order or judgment on the ground of fraud, misrepresentation, or other misconduct of an adverse party" (Wells Fargo Bank, N.A. v Olivo, 241 AD3d 763, 765 [internal quotation marks omitted]; see U.S. Bank N.A. v Morino, 207 AD3d 776, 777). "While there is no specific time limit within which to move under this provision, the motion must be made within a reasonable time" (Wells Fargo Bank, N.A. v Olivo, 241 AD3d at 765, quoting Empire State Conglomerates v Mahbur, 105 AD3d 898, 899; see Deutsche Bank Natl. Trust Co. v James, 164 AD3d 467, 469). Here, the defendant's delay in seeking relief under CPLR 5015(a)(3) was unreasonable (see Wells Fargo Bank, N.A. v Olivo, 241 AD3d at 765; New Century Mtge. Corp. v Chimmiri, 146 AD3d 893, 894). Moreover, the defendant failed to provide any basis for relief pursuant to CPLR 5015(a)(4). Accordingly, the defendant's motion, inter alia, pursuant to CPLR 5015(a)(3) and (4) to vacate the June 2018 order and the order and judgment of foreclosure and sale, to set aside the foreclosure sale of the property, to vacate the referee's deed, and pursuant to CPLR 2201 to stay a related eviction proceeding, and separate motion, among other things, pursuant to CPLR 2201 to stay a related eviction proceeding were properly denied. The defendant's remaining contentions either need not be reached in light of our determination or are without merit. IANNACCI, J.P., DOWLING, LANDICINO and LOVE, JJ., concur. ENTER: Darrell M. Joseph Clerk of the Court