Fischman v. Gilmore

In an action, inter alia, to foreclose a mortgage, the defendant Maggie Gilmore appeals from an order of the Supreme Court, Queens County (Berke, J.), dated November 21, 1996, which denied her motion pursuant to CPLR 5015 (a) (3) to vacate a judgment of default entered upon her failure to answer the complaint. Ordered that the order is affirmed, without costs or disbursements. In this mortgage foreclosure action, the appellant moved to vacate a judgment of default entered against her based upon “fraud, misrepresentation, or other misconduct of an adverse party” (CPLR 5015 [a] [3]). The appellant alleged that the plaintiffs had obtained the underlying judgment of default through “intrinsic fraud” (Morel v Clacherty, 186 AD2d 638, 639), rather than through “extrinsic fraud” (Shaw v Shaw, 97 AD2d 403). Therefore, she was required, inter alia, to show a reasonable excuse for her default (see, Morel v Clacherty, supra; Berardo v Berardo, 205 AD2d 1036). Having failed to do so, the court properly denied the appellant’s motion to vacate her default (Morel v Clacherty, supra; Berardo v Berardo, supra). Rosenblatt, J. P., O’Brien, Thompson, Friedmann and Goldstein, JJ., concur.