Priester v. Sigmond

Appeal from an order of the County Court, entered March 5, 1975 in Saratoga County, which denied the application of the defendants to vacate and set aside a judgment of foreclosure and sale. The action was brought by the plaintiff to foreclose a purchase money mortgage and to reform the deed so as to decrease the size of the demised premises. Following the service of an answer, plaintiff’s motion for summary judgment was entered by default on November 4, 1974 when the defendants failed to appear in opposition to the motion. Defendants have not fulfilled the requirement of CPLR 5015 (subd [a], par 1) which requires that a defendant must first show that he has a meritorious defense before he may be permitted to open a default (Hurley v Reoux, 29 AD2d 789). The undisputed proof shows that at the time of the granting of the judgment of foreclosure the defendants were hundreds of dollars in arrears in the payment of their taxes. Since this constitutes a default under the mortgage, the order must be affirmed. Moreover, the defendants do not seek to vacate that portion of the trial court’s order of November 14, 1974 which directed that the deed of conveyance of the mortgaged premises be reformed. Order affirmed, with costs. Herlihy, P. J., Greenblott, Kane, Larkin and Reynolds, JJ., concur.