HSBC Bank USA, N.A. v Sage

HSBC Bank USA, N.A. v Sage 2016 NY Slip Op 07073 Decided on October 27, 2016 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: October 27, 2016
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[*1]HSBC BANK USA, NATIONAL ASSOCIATION, as Trustee for ACE SECURITIES CORPORATION HOME EQUITY LOAN TRUST, SERIES 2006-OP2 ASSET BACKED PASS-THROUGH CERTIFICATES, Respondent,

v

GREGORY SAGE, Appellant, et al., Defendants.

Calendar Date: September 12, 2016
Before: Egan Jr., J.P., Lynch, Devine, Clark and Mulvey, JJ.

Gregory Sage, Kerhonkson, appellant pro se.

Houser & Allison, APC, New York City (Eric D. Houser admitted pro hac vice), for respondent.

Clark, J.

MEMORANDUM AND ORDER

Appeal from an order of the Supreme Court (Melkonian, J.), entered May 1, 2015 in Ulster County, which denied defendant's motion to vacate a judgment of foreclosure.

In 2009, after defendant Gregory Sage (hereinafter defendant) defaulted on a note secured by a mortgage on his real property, plaintiff commenced this action and, following joinder

of issue, moved for summary judgment striking defendant's answer and for the appointment of a referee. Defendant cross-moved for, among other things, leave to amend his answer to allege that plaintiff lacked standing to commence the action. Supreme Court granted plaintiff's motion and denied defendant's cross motion, and this Court affirmed (112 AD3d 1126 [2013], lvs dismissed 22 NY3d 1172, 23 NY3d 1015 [2014]). Thereafter, in 2014, defendant moved pursuant to CPLR 5015 (a) to vacate the judgment of foreclosure. Supreme Court denied the motion, and we now affirm.

A trial court may relieve a party from a judgment or order on the basis of "newly-discovered evidence which . . . would probably have produced a different result and which could not have been discovered in time [for a motion pursuant to CPLR] 4404" or on the basis of "fraud, misrepresentation, or other misconduct of an adverse party" (CPLR 5015 [a] [2], [3]). "A motion to vacate a prior judgment or order 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 AD3d 1502, 1503 [2012], quoting Maddux v Schur, 53 AD3d 738, 739 [2008]; see Alliance Prop. Mgt. & Dev. v Andrews Ave. Equities, 70 NY2d 831, 832 [1987]).

Defendant sought to vacate the judgment of foreclosure on the basis of "newly-discovered evidence," including an affidavit from a handwriting analyst, allegedly demonstrating that the affidavit submitted by plaintiff to establish that it had standing to bring this foreclosure action was falsified. However, as this Court previously determined (112 AD3d at 1127), defendant waived his standing argument by failing to raise it in a pre-answer motion to dismiss or in his answer (see CNB Realty v Stone Cast, Inc., 127 AD3d 1438, 1439 [2015]; HSBC Bank USA, N.A. v Ashley, 104 AD3d 975, 975-976 [2013], lv dismissed 21 NY3d 956 [2013]). Moreover, defendant failed to demonstrate why this evidence was not available or could not, with due diligence, have been discovered at the time that he opposed plaintiff's motion for summary judgment (see Pritchard v Curtis, 101 AD3d at 1503; Maddux v Schur, 53 AD3d 738, 739 [2008]). In view of the foregoing, we discern no abuse of discretion in Supreme Court's denial of defendant's motion to vacate the judgment of foreclosure (see HSBC Bank USA, N.A. v Ashley, 104 AD3d at 975-976; Pritchard v Curtis, 101 AD3d at 1503).

Defendant's remaining arguments, to the extent not explicitly addressed herein, have been examined and found to be lacking in merit.

Egan Jr., J.P., Lynch, Devine and Mulvey, JJ., concur.

ORDERED that the order is affirmed, without costs.