| Deutsche Bank Natl. Trust Co. v Wilkins |
| 2012 NY Slip Op 05385 [97 AD3d 527] |
| July 5, 2012 |
| Appellate Division, Second Department |
| Deutsche Bank National Trust Company,Respondent, v Craig Wilkins, Appellant. |
—[*1] Hogan Lovells US, LLP, New York, N.Y. (David Dunn and Renee Garcia of counsel), forrespondent.
In an action to foreclose a mortgage, the defendant appeals from so much of an order of theSupreme Court, Queens County (Butler, J.), dated July 25, 2011, as denied his motion for leaveto renew his opposition to the plaintiff's prior motion for summary judgment, which had beengranted in an order of the same court dated March 2, 2009.
Ordered that the order dated July 25, 2011, is affirmed insofar as appealed from, with costs.
On April 26, 2006, the defendant executed an adjustable rate note and, in return for a loan hereceived, promised to pay the sum of $512,000 plus interest to the lender, WMC Mortgage Corp.The note was secured by a mortgage on the subject property, located in Hollis, New York. Themortgage stated, inter alia, that Mortgage Electronic Registration Systems, Inc. (hereinafterMERS), was a nominee for the lender and that, for purposes of recording the mortgage, MERSwas the mortgagee of record. On February 27, 2008, the mortgage was assigned by MERS,"together with the bond or obligation described" in the mortgage, to the plaintiff, as trustee. OnMarch 11, 2008, the plaintiff commenced this action against the defendant to foreclose on themortgage. The defendant interposed an answer alleging, inter alia, that the plaintiff was not thecurrent holder of the note and mortgage. Thereafter, the plaintiff moved for summary judgmenton the complaint. The defendant opposed the motion. In an order dated March 2, 2009, theSupreme Court granted the plaintiff's motion for summary judgment. Six months later, thedefendant moved for leave to renew his opposition to the plaintiff's motion for summaryjudgment. In an order dated July 25, 2011, the Supreme Court, inter alia, denied the defendant'smotion for leave to renew. The defendant appeals, and we affirm the order dated July 25, 2011,insofar as appealed from.
"A motion for leave to renew is addressed to the sound discretion of the court" (Matheus v Weiss, 20 AD3d 454,454-455 [2005]). Pursuant to CPLR 2221, a motion for leave to renew "shall be based upon newfacts not offered on the prior motion that would change the prior determination" (CPLR 2221 [e][2]) and "shall contain reasonable justification for the failure to present such facts on the priormotion" (CPLR 2221 [e] [3]; see Bankof N.Y. Mellon v Izmirligil, 88 AD3d 930, 932 [2011]; Worrell v Parkway Estates, LLC, 43AD3d 436, 437 [2007]). "A motion 'to renew is not [*2]asecond chance freely given to parties who have not exercised due diligence in making their firstfactual presentation' " (Sobin vTylutki, 59 AD3d 701, 702 [2009], quoting Renna v Gullo, 19 AD3d 472, 473 [2005] [internal quotation marksomitted]).
Here, the purported new facts set forth in the defendant's motion for leave to renew wereavailable to him at the time he opposed the plaintiff's motion for summary judgment, and hefailed to demonstrate a reasonable justification for failing to submit them. In any event, thepurported new facts would not have changed the prior determination (see Matter of Leone Props., LLC v Boardof Assessors for Town of Cornwall, 81 AD3d 649, 651 [2011]; Countrywide Home Loans Servicing, LP vAlbert, 78 AD3d 985, 986 [2010]).
The defendant's remaining contentions are either without merit or improperly raised for thefirst time on appeal.
Accordingly, the Supreme Court providently exercised its discretion in denying thedefendant's motion for leave to renew his opposition to the plaintiff's prior motion for summaryjudgment. Skelos, J.P., Dillon, Leventhal and Sgroi, JJ., concur.