| NYCTL 1998-2 Trust v Michael Holdings, Inc. |
| 2010 NY Slip Op 07520 [77 AD3d 805] |
| October 19, 2010 |
| Appellate Division, Second Department |
| NYCTL 1998-2 Trust et al., Respondents, v MichaelHoldings, Inc., Respondent, et al., Defendants. L.T. Motors Auto Sales, Inc., NonpartyAppellant. |
—[*1] Phillips Lytle, LLP, Rochester, N.Y. (Mark J. Moretti and Richard M. Beers of counsel), forplaintiffs-respondents. Tratner, Molloy & Goodstein, LLP, New York, N.Y. (Jason Y. Goodstein of counsel), fordefendant-respondent.
In an action to foreclose a tax lien, nonparty L.T. Motor Auto Sales, Inc., appeals, as limitedby its brief, from (1) so much of an order of the Supreme Court, Queens County (Flug, J.),entered February 13, 2009, as denied its motion to vacate a judgment of foreclosure and sale ofthe same court entered February 8, 2007, and (2) so much of an order of the same court enteredMay 8, 2009, as denied that branch of its motion which was for leave to renew its prior motion tovacate, and, in effect, upon granting that branch of its motion which was for leave to reargue itsprior motion to vacate the judgment of foreclosure and sale, and its opposition to the motion ofthe defendant Michael Holdings, Inc., to confirm a referee's report and for the distribution of thesurplus money to it, adhered to the original determination.
Ordered that the appeal from the order entered February 13, 2009, is dismissed, as that orderwas superseded by the order made, in effect, upon reargument; and it is further,
Ordered that the order entered May 8, 2009, is affirmed insofar as appealed from; and it isfurther,
Ordered that one bill of costs is awarded to the respondents appearing separately and filingseparate briefs.
As the Supreme Court reviewed the merits of the appellant's contentions on the branch of itsmotion which was for leave to reargue, the court, in effect, granted reargument and adhered to itsoriginal determination. Therefore, contrary to the respondents' contentions, the order entered May8, 2009, made, in effect, upon reargument, is appealable (see Matter of Mattie M. v Administration for Children's Servs., 48AD3d 392 [2008]; Rivera v GlenOaks Vil. Owners, Inc., 29 AD3d 560 [2006]).[*2]
Since the appellant failed to demonstrate that theSupreme Court misapprehended any of the relevant facts that were before it or misapplied anycontrolling principle of law, the Supreme Court properly adhered to its prior determinationdenying the appellant's motion to vacate the judgment of foreclosure and sale. A tenant is not anindispensable party to a foreclosure action, and the failure to name a tenant does not render thejudgment of foreclosure and sale defective (see G.C.M. Corp. v 382 Van Duzer Corp.,249 AD2d 264 [1998]; Balt v J.S. Funding Corp., 230 AD2d 699 [1996]). Additionally,the Supreme Court properly determined that the appellant was not a contract vendee withequitable title to the property and an equitable lien in the amount of the consideration it allegedlypaid (see Heritage Art Galleries v Raia, 173 AD2d 441 [1991]; Polish Natl. Allianceof Brooklyn v White Eagle Hall Co., 98 AD2d 400 [1983]; see also Singh v Atakhanian, 31 AD3d425 [2006]).
The Supreme Court properly denied that branch of the appellant's motion which was forleave to renew its prior motion, as none of the new facts relied upon was sufficient to change theoriginal determination (see CPLR 2221 [e]; Bank of N.Y. v Segui, 68 AD3d 908 [2009]; Weitzenberg v Nassau County Dept. ofRecreation & Parks, 53 AD3d 653 [2008]). The appellant's remaining contention iswithout merit. Mastro, J.P., Covello, Dickerson and Roman, JJ., concur.
Separate motions by the plaintiffs-respondents and the defendant-respondent, inter alia, todismiss an appeal from an order of the Supreme Court, Queens County, entered May 8, 2009, onthe ground that no appeal lies from an order denying reargument. By decision and order onmotion of this Court dated May 14, 2010, those branches of the motions which were to dismissthe appeal from the order entered May 8, 2009, on the ground that no appeal lies from an orderdenying reargument were held in abeyance and were referred to the panel of Justices hearing theappeal for determination upon the argument or submission thereof.
Upon the papers filed in support of the motions, the papers filed in opposition thereto, andupon the submission of the appeal, it is
Ordered that those branches of the motions which were to dismiss the appeal from the orderentered May 8, 2009, on the ground that no appeal lies from an order denying reargument aredenied in light of our determination on the appeal. Mastro, J.P., Covello, Dickerson and Roman,JJ., concur.