| Bank of N.Y. v Segui |
| 2009 NY Slip Op 09413 [68 AD3d 908] |
| December 15, 2009 |
| Appellate Division, Second Department |
| Bank of New York, Respondent, v Margarita Segui,Appellant, et al., Defendants. Chaim Streicher, NonpartyRespondent. |
—[*1] Rosicki, Rosicki & Associates, P.C., Plainview, N.Y. (Owen M. Robinson of counsel), forplaintiff-respondent.
In an action to foreclose a mortgage, the defendant Margarita Segui appeals, as limited byher brief, from so much of an order of the Supreme Court, Kings County (Rothenberg, J.), datedDecember 19, 2007, as denied her motion, inter alia, for leave to renew her prior motionpursuant to CPLR 5015 (a) (1) to vacate a judgment of foreclosure and sale of the same courtentered July 12, 2004, upon her default in appearing or answering, which had been denied in anorder dated March 22, 2006.
Ordered that the order dated December 19, 2007 is affirmed insofar as appealed from, withcosts.
The Supreme Court properly denied the motion of the defendant Margarita Segui, inter alia,for leave to renew her prior motion pursuant to CPLR 5015 (a) (1) to vacate the judgment offoreclosure and sale. As the Supreme Court correctly found, none of the new facts relied upon bySegui was sufficient to change the original determination (see CPLR 2221 [e];Weitzenberg v Nassau County Dept. of Recreation & Parks, 53 AD3d 653 [2008];Crystal House Manor, Inc. v Totura, 29 AD3d 933 [2006]). The affidavit of service ofthe process server, submitted in opposition to Segui's prior motion, constitutes prima facieevidence that Segui was validly served pursuant to CPLR 308 (2) (see Cavalry PortfolioServs., LLC v Reisman, 55 AD3d 524 [2008]; Jefferson v Netusil, 44 AD3d 621[2007]), and the new facts relied upon by Segui, specifically, those set forth in the affidavit ofher husband, failed to raise an issue of fact requiring a hearing since her husband did notsubstantiate his claim that he was at work at the time the process server averred that he acceptedprocess on Segui's behalf (see Town House St., LLC v New Fellowship Full Gospel BaptistChurch, Inc., 29 AD3d 893, 894[2006]; General Motors Acceptance Corp. v Grade AAuto Body, Inc., 21 AD3d 447 [2005]; Carrenard v Mass, 11 AD3d 501 [2004]).Accordingly, the affidavit of Segui's husband did not provide a proper basis for renewal (seeWeitzenberg v Nassau County Dept. of Recreation & Parks, 53 AD3d at 653; Duffy vKokolakis Contr., 278 AD2d 445 [2000]; Natale v Samel & Assoc., 264 AD2d 384[1999]).
The remaining new facts relied upon by Segui are unsupported and conclusory and, thus,insufficient to constitute grounds for renewal (see Worthy v Good Samaritan Hosp. Med.Ctr., [*2]50 AD3d 1023, 1024 [2008]; Weitzenberg vNassau County Dept. of Recreation & Parks, 29 AD3d 682 [2006]; P&N Tiffany Props.,Inc. v Maron, 16 AD3d 395 [2005]).
Cross motion by the plaintiff-respondent to dismiss an appeal from an order of the SupremeCourt, Kings County, dated December 19, 2007, on the ground that the appellant's motion, interalia, for leave to renew her prior motion pursuant to CPLR 5015 (a) (1) to vacate a judgment offoreclosure and sale of the same court entered July 12, 2004, upon her default in appearing oranswering, which had been denied in an order dated March 22, 2006, was, in actuality, one forleave to reargue her prior motion, the denial of which is not appealable. By decision and order onmotion of this Court dated May 21, 2008[2008 NY Slip Op 72563(U)], inter alia, the crossmotion was referred to the panel of Justices hearing the appeal for determination upon theargument or submission thereof.
Upon the papers filed in support of the cross motion, the papers filed in opposition thereto,and upon the argument of the appeal, it is
Ordered that the cross motion is denied. Rivera, J.P., Dillon, Belen and Hall, JJ., concur.