| Vigo v 501 Second St. Holding Corp. |
| 2012 NY Slip Op 07989 [100 AD3d 871] |
| November 21, 2012 |
| Appellate Division, Second Department |
| Norma Vigo, Respondent, v 501 Second Street HoldingCorp., Appellant, et al., Defendants. (And a Third-Party Action.) |
—[*1] Victoria Kennedy, New York, N.Y., for respondent.
In an action to foreclose a mortgage, the defendant 501 Second Street Holding Corp. appealsfrom an order of the Supreme Court, Kings County (Knipel, J.), dated July 30, 2010, which, upona decision of the same court dated June 29, 2010, denied its motion for leave to reargue itsmotion pursuant to CPLR 3211 to dismiss the complaint insofar as asserted against it and thedefendant 501 Second Street, LLC, which had been denied in an order of the same court datedOctober 2, 2009, granted the plaintiff's cross motion for leave to enter a default judgment againstthe defendants 501 Second Street Holding Corp. and 501 Second Street, LLC, and directed that,upon the conclusion of the action against the remaining defendants, a referee shall be appointedto compute the amount due to the plaintiff for the principal, interest, and late charges upon, andany money advanced pursuant to any provision of, the mortgage and note with respect to thesubject premises.
Ordered that the appeal from so much of the order dated July 30, 2010, as denied the motionof the defendant 501 Second Street Holding Corp. for leave to reargue its motion pursuant toCPLR 3211 to dismiss the complaint insofar as asserted against it and the defendant 501 SecondStreet, LLC, is dismissed, as no appeal lies from an order denying reargument; and it is further,
Ordered that the appeal from so much of the order dated July 30, 2010, as granted that branchof the plaintiff's cross motion which was for leave to enter a default judgment against thedefendant 501 Second Street, LLC, is dismissed, as the appellant is not aggrieved by that portionof the order; and it is further,
Ordered that the order dated July 30, 2010, is affirmed insofar as reviewed; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
The Supreme Court correctly granted that branch of the plaintiff's cross motion which [*2]was for leave to enter a default judgment against the appellant, asthe appellant failed to timely serve and file an answer to the amended complaint, and failed "todemonstrate a reasonable excuse for its default and a potentially meritorious defense to theaction" (Atlantic Cas. Ins. Co. v RJNJServs., Inc., 89 AD3d 649, 651 [2011]; see Maspeth Fed. Sav. & Loan Assn. v McGown, 77 AD3d 889,890 [2010]; Lipp v Port Auth. of N.Y. &N.J., 34 AD3d 649, 649 [2006]).
The appellant contends that by moving for leave to reargue its prior motion to dismiss theamended complaint pursuant to CPLR 3211, its time to serve and file an answer to the amendedcomplaint was extended, pursuant to CPLR 3211 (f), until 10 days after service of notice of entryof the order determining the reargument motion. This contention is incorrect. Only a motion todismiss an action or a defense, in accordance with CPLR 3211 (a) or (b), serves to so extend thetime to serve and file an answer. A motion for leave to reargue pursuant to CPLR 2221 does not(cf. Storman v Storman, 90 AD3d895 [2011]; 333 Cherry LLC vNorthern Resorts, Inc., 66 AD3d 1176, 1177 [2009]; Haughton v F.W.D. Corp.,193 AD2d 781 [1993]).
The appellant's remaining contentions are without merit. Dillon, J.P., Florio, Austin andRoman, JJ., concur.