| Onewest Bank, FSB v Slowek |
| 2014 NY Slip Op 01654 [115 AD3d 1083] |
| March 13, 2014 |
| Appellate Division, Third Department |
| Onewest Bank, FSB, Respondent, v Carol A. Slowek et al.,Appellants. |
—[*1] Stein Weiner & Roth, LLP, Carle Place (Jonathan M. Cohen of counsel), forrespondent.
Lahtinen, J.P. Appeal from an order of the Supreme Court (Ferradino, J.), enteredAugust 28, 2012 in Saratoga County, which denied defendants' motion for renewal.
Plaintiff commenced this mortgage foreclosure action and, although defendantsdefaulted, the default judgment was vacated by stipulation in September 2011.Defendants then answered and eventually made a motion to, among other things, compeldiscovery. Plaintiff cross-moved to discontinue the action without prejudice anddefendants did not submit papers in opposition to the cross motion, which was returnableon April 6, 2012. On April 19, 2012, Supreme Court granted plaintiff's cross motion anddenied defendants' motion as moot. In May 2012, defendants moved pursuant to CPLR2221 for renewal regarding both motions. Supreme Court denied the motion anddefendants appeal.
Finding no abuse of discretion, we affirm. "Motions for leave to renew are left to thesound discretion of the trial court" (Matter of City of New York v New York State Pub. Empl. RelationsBd., 103 AD3d 145, 152 [2012], lv denied 21 NY3d 855 [2013][citations omitted]) and such motions are "not a second chance to remedy inadequaciesthat occurred in failing to exercise due diligence in the first instance" (Tibbits v Verizon N.Y., Inc.,40 AD3d 1300, 1303 [2007]). Here, defendants failed to submit any opposition toplaintiff's cross motion to discontinue. Defendants indicated in their motion to renew thatthere had been communication with plaintiff's counsel regarding an adjournment andadditional time to respond. However, the [*2]court foundthis excuse unavailing since no effort had been made to notify the court of suchcommunication or to seek an adjournment from the court. Defendants did not object atthe time the cross motion was made to the short time for responding nor did they indicateto the court that additional time was needed to respond.
Moreover, Supreme Court determined that, in any event, defendants had notestablished that discontinuance would cause them prejudice (see Urbonowicz vYarinsky, 290 AD2d 922, 923 [2002]; Christenson v Gutman, 249 AD2d805, 806 [1998]). It noted in such regard that defendants can continue to reside in themortgaged premises pending another action and that, if a new foreclosure action iscommenced, defendants will have the same rights as were available in the discontinuedaction. The remaining arguments have been considered and are unpersuasive.
Stein, McCarthy and Egan Jr., JJ., concur. Ordered that the order is affirmed, withcosts.