| GMAC Mtge., LLC v Spindelman |
| 2016 NY Slip Op 01066 [136 AD3d 1366] |
| February 11, 2016 |
| Appellate Division, Fourth Department |
[*1]
| GMAC Mortgage, Successor by Merger to GMACMortgage Corporation, Formerly Known as GMAC Mortgage Corporation of PA, LLC,Respondent, v Michael H. Spindelman et al., Appellants. |
Drew & Drew, LLP, Buffalo (Dean M. Drew of counsel), fordefendants-appellants.
Hinshaw & Culbertson LLP, New York City (Benjamin Noren of counsel), forplaintiff-respondent.
Appeal from an order of the Supreme Court, Erie County (Thomas P. Franczyk,A.J.), entered May 19, 2014. The order denied the motion of defendants for leave toreargue and renew their prior motion to vacate a judgment of foreclosure.
It is hereby ordered that said appeal from the order insofar as it denied leave toreargue is unanimously dismissed and the order is otherwise affirmed without costs.
Memorandum: After plaintiff commenced this mortgage foreclosure action, a defaultjudgment of foreclosure was entered against defendants in April 2008. Five years later,defendants moved to vacate the judgment pursuant to CPLR 5015 (a) (1) contending,inter alia, that plaintiff lacked standing to commence the action against them. SupremeCourt denied that motion, concluding that defendants had waived their right to assert theaffirmative defense of plaintiff's lack of standing to commence the action and that, in anyevent, plaintiff had standing to commence the action. Defendants' appeal from that orderwas dismissed for failure to perfect (see 22 NYCRR 1000.12).
Meanwhile, defendants filed a motion that was identified as a motion for leave toreargue the motion to vacate. Attached to that motion, however, were documents notpreviously submitted on the motion to vacate. The court informed the parties that it wastreating the motion as a "hybrid" motion for leave to reargue and leave to renew andpermitted them to submit additional documentary evidence. Ultimately, the court deniedthe motion for leave to reargue and leave to renew "in all respects." Defendants nowappeal from the order denying that motion.
Plaintiff contends that this appeal is not properly before us because defendants'motion was "identified specifically" as a motion for leave to reargue (CPLR 2221 [d][1]), and it is well settled that "no appeal lies from an order denying leave to reargue" (Hill v Milan, 89 AD3d1458, 1458 [2011]). While we agree with plaintiff that defendants failed to identifythe motion as a motion for leave to renew (see CPLR 2221 [e] [1]) and, to theextent that defendants' motion was a combined motion for leave to reargue and leave torenew, failed to "identify separately and support separately each item of relief sought"(CPLR 2221 [f]), we reject plaintiff's contention that those failures are fatal to the entireappeal (see Boakye-Yiadom vRoosevelt Union Free School Dist., 57 AD3d 929, 930-931 [2008]; Petsako v Zweig, 8 AD3d355, 355-356 [2004]; Matter of Hurley v Avon Cent. School Dist., 187AD2d 983, 983 [1992]; see generally CPLR 103 [c]; 104).
We agree with plaintiff, however, that the appeal from that part of the order denyingleave to reargue must be dismissed (see Hill, 89 AD3d at 1458). Even assuming,arguendo, that defendants' contentions arise from the denial of the motion for leave torenew, we conclude that [*2]the motion for leave torenew was properly denied. All of the new facts submitted by defendants on the motionfor leave to renew were obtained from public documents on file with the Erie CountyClerk, which could have been obtained at any time during the five-year period betweenthe time the judgment was issued and the time defendants filed the original motion tovacate (see N.A.S. Partnership v Kligerman, 271 AD2d 922, 923 [2000]; see also Vieyra v Penn Toyota,Ltd., 116 AD3d 840, 841 [2014], lv dismissed in part and denied in part24 NY3d 1217 [2015]; Welch Foods v Wilson, 247 AD2d 830, 830 [1998]).Inasmuch as defendants failed to establish "a 'reasonable justification for the failure topresent [the new] facts on the . . . motion [to vacate],' " the courtlacked discretion to grant the motion seeking leave to renew (Robinson v Consolidated RailCorp., 8 AD3d 1080, 1080 [2004]; see Sobin v Tylutki, 59 AD3d 701, 702 [2009]).
In light of our determination, we do not address defendants' remaining contentions.Present—Whalen, P.J., Centra, Peradotto, Carni and Scudder, JJ.