| Deutsche Bank Trust Co. v Ghaness |
| 2012 NY Slip Op 07265 [100 AD3d 585] |
| November 7, 2012 |
| Appellate Division, Second Department |
| Deutsche Bank Trust Company, Respondent, v NarharryGhaness, Appellant, et al., Defendants. |
—[*1] Fein, Such & Crane, LLP (D.J. & J.A. Cirando, Syracuse, N.Y. [John A. Cirando, Bradley E.Keem, and Elizabeth deV. Moeller], of counsel), for respondent.
In an action to foreclose a mortgage, the defendant Narharry Ghaness appeals from an orderof the Supreme Court, Queens County (Elliot, J.), dated April 6, 2011, which denied his motionfor leave to renew and reargue his motion to vacate a judgment of foreclosure and sale of thesame court dated March 3, 2009, entered upon his default in answering or appearing.
Ordered that the appeal from so much of the order as denied that branch of the motion of thedefendant Narharry Ghaness which was for leave to reargue is dismissed, as no appeal lies froman order denying reargument; and it is further,
Ordered that the order is affirmed insofar as reviewed; and it is further,
Ordered that one bill of costs is awarded to the respondent.
A motion for leave to renew must be based upon new facts, not offered on the originalmotion "that would change the prior determination" (CPLR 2221 [e] [2]; see Rowe v NYCPD, 85 AD3d1001, 1003 [2011]; DevelopmentStrategies Co., LLC, Profit Sharing Plan v Astoria Equities, Inc., 71 AD3d 628 [2010]).The new or additional facts either must have not been known to the party seeking renewal ormay, in the Supreme Court's discretion, be based on facts known to the party seeking renewal atthe time of the original motion (seeDervisevic v Dervisevic, 89 AD3d 785, 786-787 [2011]; Rowe v NYCPD, 85AD3d at 1003). However, in either instance, a "reasonable justification" for the failure to presentsuch facts on the original motion must be presented (CPLR 2221 [e] [3]). Here, the "newevidence" offered by the appellant consisted of information which the appellant knew or shouldhave known to have existed at the time of his motion to vacate, and he failed to set forth areasonable justification as to why he failed to submit this information in the first instance (seeDervisevic v Dervisevic, 89 AD3d at 786-787; Rowe v NYCPD, 85 AD3d at 1003).
Accordingly, the Supreme Court properly denied that branch of the appellant's motion whichwas for leave to renew his motion to vacate a judgment of foreclosure and sale entered upon hisdefault in answering or appearing. Rivera, J.P., Angiolillo, Chambers and Roman, JJ., concur.