| Gro-Wit Capital, Ltd. v Obigor, LLC |
| 2009 NY Slip Op 04860 [63 AD3d 785] |
| June 9, 2009 |
| Appellate Division, Second Department |
| Gro-Wit Capital, Ltd., Appellant, v Obigor, LLC, et al.,Defendants, and David Hosten, Respondent. |
—[*1] Firestone & Harris, Brooklyn, N.Y. (Edward M. Rappaport and Alan J. Firestone ofcounsel), for respondent.
In an action to foreclose a mortgage, the plaintiff appeals from an order of the SupremeCourt, Kings County (F. Rivera, J.), dated September 12, 2008, which granted the renewedmotion of the defendant David Hosten pursuant to, inter alia, CPLR 5015 (a) (4) to vacate ajudgment of the same court entered November 16, 2006, in favor of the plaintiff and against himin the total sum of $305,499.57, and denied its cross motion to approve the entry of thatjudgment nunc pro tunc.
Ordered that the order is affirmed, with costs.
On a prior appeal by the plaintiff in this foreclosure action, this Court reversed an order ofthe Supreme Court which denied the plaintiff's motion for summary judgment on the issue ofliability against the defendant David Hosten, and granted the motion (see Gro-Wit Capital, Ltd. v Obigor, LLC,33 AD3d 859 [2006]) (hereinafter the prior appeal). Thereafter, without further judicialintervention or approval, the plaintiff secured the entry of a money judgment against Hosten onNovember 16, 2006. That was improper, as neither this Court's decision and order on the priorappeal, nor any subsequent order of the Supreme Court, awarded the plaintiff that relief.
Accordingly, the Supreme Court correctly granted the renewed motion of the defendantDavid Hosten to vacate the judgment entered November 16, 2006. Furthermore, the SupremeCourt properly denied the plaintiff's cross motion to approve the entry of the judgment nunc protunc, since the only relief sought against Hosten was equitable in nature, the plaintiff neversought leave to amend its complaint to assert a cause of action to recover damages againstHosten, and the evidence before us does not otherwise demonstrate the plaintiff's entitlement tosuch damages (cf. CPLR 3017 [a]).
The plaintiff's remaining contentions are without merit. Florio, J.P., Miller, Covello andAustin, JJ., concur.