                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: October 27, 2016                   521968
________________________________

HSBC BANK USA, NATIONAL
   ASSOCIATION, as Trustee for
   ACE SECURITIES CORPORATION
   HOME EQUITY LOAN TRUST,
   SERIES 2006-OP2 ASSET
   BACKED PASS-THROUGH
   CERTIFICATES,                            MEMORANDUM AND ORDER
                    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.

      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
                              -2-                521968

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-
                              -3-                  521968

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.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
