The Second Department, reversing Supreme Court, over a dissent, determined the plaintiff bank’s motion to vacate a dismissal of a foreclosure action should have been granted. Supreme Court had improperly applied an administrative order (AO 548/10) requiring a “Foreclosure Affirmation/Certificate of Merit” that was not in effect at the time the bank made its motion for summary judgment. The parties had entered a stipulation which awarded the bank summary judgment in return for waiver of its right to seek a deficiency judgment. The court noted that the improper retroactive application of AO 548/10 could be raised for the first time on appeal because it is a question of law that could not be avoided if it had been raised at the proper time:
“[A] court may vacate its own judgment for sufficient reason and in the interest of substantial justice”… . “A foreclosure action is equitable in nature and triggers the equitable powers of the court” … . “Once equity is invoked, the court’s power is as broad as equity and justice require” … .
Here, equity and justice require vacatur of the dismissal order in the interests of substantial justice … . Countrywide Bank, FSB v Singh, 2019 NY Slip Op 04353, Second Dept 6-5-19