| Central Mtge. Co. v McClelland |
| 2014 NY Slip Op 05503 [119 AD3d 885] |
| July 30, 2014 |
| Appellate Division, Second Department |
[*1]
| 1 Central Mortgage Company,Respondent, v Vincent McClelland et al., Appellants, et al.,Defendants. |
Hanna & Vlahakis, Brooklyn, N.Y. (Derrick Hanna of counsel), forappellants.
Berkman, Henoch, Peterson, Peddy & Fenchel, P.C., Garden City, N.Y. (NicoleL. Milone and Alan J. Waintraub of counsel), for respondent.
In an action to foreclose a mortgage, the defendants Vincent McClelland and DeniseMcClelland appeal, as limited by their brief, from so much of an order of the SupremeCourt, Richmond County (Maltese, J.), dated February 11, 2013, as granted the plaintiff'smotion for leave to renew and reargue and, upon renewal and reargument, in effect,vacated so much of an order of the same court dated September 6, 2012, as denied thatbranch of the plaintiff's motion which was for summary judgment on the complaintinsofar as asserted against them, and granted that branch of their cross motion which wasfor summary judgment dismissing the complaint insofar as asserted against them, andthereupon, granted that branch of the plaintiff's motion which was for summary judgmenton the complaint insofar as asserted against them and denied that branch of their crossmotion which was for summary judgment dismissing the complaint insofar as assertedagainst them.
Ordered that the order dated February 11, 2013, is affirmed insofar as appealed from,with costs.
This action to foreclose a mortgage was commenced in June 2010 against, amongothers, the defendants Vincent McClelland and Denise McClelland (hereinafter togetherthe appellants). In January 2012 the plaintiff moved, inter alia, for summary judgment onthe complaint, and the appellants cross-moved, among other things, for summaryjudgment dismissing the complaint insofar as asserted against them for lack of standing.In an order dated September 6, 2012, the Supreme Court denied the plaintiff's motionand granted that branch of the appellants' cross motion which was for summary judgmentdismissing the complaint insofar as asserted against them for lack of standing.
In October 2012, the plaintiff moved for leave to renew and reargue its motion andits opposition to the appellants' cross motion. In the order appealed from, the SupremeCourt granted the plaintiff's motion for leave to renew and reargue and, upon renewaland reargument, in effect, vacated so much of the order dated September 6, 2012, asdenied that branch of the plaintiff's motion which was for summary judgment on thecomplaint insofar as asserted against the appellants, and granted that branch of theappellants' cross motion which was for summary judgment dismissing the complaintinsofar as asserted against them, and thereupon, granted that branch of the plaintiff'smotion and denied that branch of the appellants' cross motion.
[*2] A motion for leave to renew or reargue is addressed tothe sound discretion of the Supreme Court (see Biscone v JetBlue Airways Corp., 103 AD3d 158, 180[2012]; HSBC Bank USA, N.A.v Halls, 98 AD3d 718, 720 [2012]; Matter of Swingearn, 59 AD3d 556 [2009]). A motion forleave to renew "shall be based upon new facts not offered on the prior motion that wouldchange the prior determination" (CPLR 2221 [e] [2]). A motion for leave to reargue mustbe "based upon matters of fact or law allegedly overlooked or misapprehended by thecourt in determining the prior motion, but shall not include any matters of fact notoffered on the prior motion" (CPLR 2221 [d] [2]). Under the circumstances of this case,the Supreme Court providently exercised its discretion in granting the plaintiff's motionfor leave to renew and reargue and, upon renewal and reargument, properly granted thatbranch of the plaintiff's motion which was for summary judgment on the complaintinsofar as asserted against the appellants, and properly denied that branch of theappellants' cross motion which was for summary judgment dismissing the complaintinsofar as asserted against them for lack of standing. The plaintiff established its primafacie entitlement to judgment as a matter of law by submitting the mortgage, theunderlying note, and evidence of the appellants' default, and by demonstrating that theappellants' affirmative defense of lack of standing was without merit (see Bank of N.Y. Mellon Trust Co.v McCall, 116 AD3d 993 [2014]). The plaintiff established its standing tomaintain this foreclosure action by demonstrating that the note was physically deliveredto it prior to the commencement of this action (see Aurora Loan Servs., LLC v Taylor, 114 AD3d 627, 628[2014]). In opposition, the appellants failed to raise a triable issue of fact. Dickerson,J.P., Leventhal, Cohen and Hinds-Radix, JJ., concur.