| Development Strategies Co., LLC, Profit Sharing Plan v AstoriaEquities, Inc. |
| 2010 NY Slip Op 01756 [71 AD3d 628] |
| March 2, 2010 |
| Appellate Division, Second Department |
| Development Strategies Company, LLC, Profit Sharing Plan,Respondent, v Astoria Equities, Inc., et al., Appellants, et al.,Defendants. |
—[*1] Robinowitz Cohlan Dubow & Doherty LLP, White Plains, N.Y. (Bruce Minkoff of counsel),for respondent.
In an action to foreclose a mortgage, the defendants Astoria Equities, Inc., AnthonyDeSabato, and Beatrice DeSabato appeal (1) from an order of the Supreme Court, SuffolkCounty (Tanenbaum, J.), dated June 28, 2007, which granted the plaintiff's unopposed motion,inter alia, for leave to enter a judgment against them upon their failure to appear or answer, (2)from a judgment of foreclosure and sale of the same court entered December 31, 2007, enteredupon their default in answering or appearing, (3) from an order of the same court dated July 21,2008, which, after a hearing, denied their motion, among other things, to vacate the judgment offoreclosure and sale entered December 31, 2007, and to set aside the sale pursuant to thatjudgment, (4), as limited by their brief, from so much of an order of the same court dated August13, 2008, as, in effect, upon reargument, adhered to the original determination in the order datedJuly 21, 2008, and (5) from an order of the same court dated November 24, 2008, which deniedtheir motion, in effect, for leave to renew their motion to vacate the judgment of foreclosure andsale entered December 31, 2007.
Ordered that the appeals from the order dated June 28, 2007, and the judgment of foreclosureand sale entered December 31, 2007, are dismissed; and it is further,
Ordered that the appeal from the order dated July 21, 2008, is dismissed, as that order wassuperseded by the order dated August 13, 2008, made upon reargument; and it is further,
Ordered that the order dated August 13, 2008, is affirmed insofar as appealed from; and it isfurther,
Ordered that the order dated November 24, 2008, is affirmed; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
The appeals from the order dated June 28, 2007, and the judgment of foreclosure and saleentered December 31, 2007, must be dismissed because no appeal lies from an order or [*2]judgment entered upon the default of the appealing party(see CPLR 5511; Murphy vShaw, 34 AD3d 657, 658 [2006]).
"A defendant seeking to vacate a default in appearing or answering must demonstrate areasonable excuse for the default and a meritorious defense to the action" (Cooper v Cooper, 55 AD3d 866,866 [2008]; see CPLR 5015 [a] [1]; Waste Mgt. of N.Y., Inc. v Bedford-Stuyvesant Restoration Corp., 13AD3d 362 [2004]). Here, the Supreme Court properly denied the appellants' motion tovacate the judgment of foreclosure and sale entered upon their default in appearing andanswering upon correctly determining that they were duly served with process and failed toestablish a reasonable excuse for their default. Accordingly, we need not determine whether theappellants demonstrated a meritorious defense (see Young Chen v Ruihua Li, 67 AD3d 905 [2009]; Cooper vCooper, 55 AD3d at 866).
" 'A motion for leave to renew must be supported by new facts not offered on the priormotion that would change the prior determination, and the motion shall also contain a reasonablejustification for the failure to present such facts on the prior motion' " (Weitzenberg v Nassau County Dept. ofRecreation & Parks, 53 AD3d 653, 653-654 [2008], quoting Williams v Nassau County Med. Ctr.,37 AD3d 594 [2007]). Here, the new facts submitted with the appellants' motion, in effect,for leave to renew were not sufficient to change the prior determination denying their motion tovacate the judgment. In addition, the appellants did not offer a reasonable justification for theirfailure to include those facts, which were then available to them, in their original motion.Accordingly, the Supreme Court, by its order dated November 24, 2008, properly denied theappellants' motion, in effect, for leave to renew.
The appellants' remaining contentions are without merit. Fisher, J.P., Angiolillo, Belen andLott, JJ., concur.