| Citimortgage, Inc. v Espinal |
| 2016 NY Slip Op 01148 [136 AD3d 857] |
| February 17, 2016 |
| Appellate Division, Second Department |
[*1]
| Citimortgage, Inc., Appellant, v Zoila Espinal,Respondent, et al., Defendants. |
Rosicki, Rosicki & Associates, P.C., Plainview, NY (Edward Rugino ofcounsel), for appellant.
In an action to foreclose a mortgage, the plaintiff appeals from an order of theSupreme Court, Nassau County (Winslow, J.), entered May 2, 2014, which denied itsunopposed motion pursuant to CPLR 2221 (e) for leave to renew, in effect, that branchof its prior motion which was for an order of reference, which had been denied in anorder of the same court dated December 24, 2007, and, sua sponte, directed the dismissalof the complaint pursuant to CPLR 3215 (c).
Ordered that on the Court's own motion, the notice of appeal from so much of theorder as, sua sponte, directed the dismissal of the complaint pursuant to CPLR 3215 (c) isdeemed to be an application for leave to appeal from that portion of the order, and leaveto appeal is granted (see CPLR 5701 [c]); and it is further,
Ordered that the order entered May 2, 2014, is reversed, on the facts and in theexercise of discretion, without costs or disbursements, the plaintiff's unopposed motionfor leave to renew is granted, and, upon renewal, the order dated December 24, 2007,insofar as it denied that branch of the plaintiff's prior motion which was for an order ofreference, is vacated, and that branch of the plaintiff's prior motion is granted.
In July 2005, the plaintiff loaned the sum of $343,200 to the defendant Zoila Espinal(hereinafter the mortgagor). The loan was evidenced by a note and secured by a mortgageon certain real property located in Freeport. Both the note and mortgage were executedby the defendant Maria Cruz, as attorney-in-fact for the mortgagor pursuant to a durablepower of attorney. In July 2007, the plaintiff commenced this mortgage foreclosureaction against the mortgagor, Cruz, and others, and in September 2007, moved, inter alia,for an order of reference. In an order dated December 24, 2007, the Supreme Courtdenied, without prejudice, that branch of the motion which was for an order of reference,as it sua sponte expressed concerns about the authority of Cruz to execute the mortgageon behalf of the mortgagor. On January 26, 2010, an initial settlement conference washeld. Thereafter, multiple settlement conferences were scheduled, all of which wereadjourned. The final conference was scheduled for March 26, 2012, but the mortgagordid not appear. In October 2013, the plaintiff moved for leave to renew, in effect, thatbranch of its prior motion which was for an order of reference, submitting additionalevidence, including the durable power of attorney. The Supreme Court denied theunopposed motion and, sua sponte, directed the dismissal of the complaint pursuant toCPLR 3215 (c). The plaintiff appeals.
Generally, "a motion for leave to renew is intended to bring to the court's attentionnew or additional facts which were in existence at the time the original motion was made,but were unknown to the movant" (Vita v Alstom Signaling, 308 AD2d 582, 582[2003]). However, the requirement [*2]that a motion forleave to renew be based upon new or additional facts unknown to the movant at the timeof the original motion is a flexible one and the court, in its discretion, may also grantrenewal, in the interest of justice, upon facts which were known to the movant at the timethe original motion was made (see id.; Tishman Constr. Corp. of N.Y. v Cityof New York, 280 AD2d 374, 376 [2001]). Except where a motion to renew is basedupon a change in the law, which is not the case here, CPLR 2221 does not impose a timelimit for making a motion for leave to renew (see Glicksman v Board of Educ./Cent.School Bd. of Comsewogue Union Free School Dist., 278 AD2d 364 [2000]). Here,the plaintiff established its entitlement to an order of reference, as it submitteddocumentary proof that the defendants failed to answer the complaint within the timeallowed, that it was the holder of the note and mortgage, that the defendants defaulted,"and that, as a preliminary step in obtaining a judgment of foreclosure, the appointmentof a referee to compute the amount due on the . . . mortgage would beproper" (HSBC Bank USA,N.A. v Taher, 104 AD3d 815, 816 [2013]; see U.S. Bank N.A. v Norgriff, 131 AD3d 527, 528 [2015];Wells Fargo Bank, NA vAmbrosov, 120 AD3d 1225, 1226 [2014]). Although the plaintiff should havebeen aware of the durable power of attorney at the time it initially sought an order ofreference, the Supreme Court, under the circumstances, improvidently exercised itsdiscretion in denying the plaintiff's motion for leave to renew, where the plaintiff, havingotherwise established its entitlement to an order of reference, submitted, inter alia, thedurable power of attorney in support of its renewal motion and the motion wasunopposed.
The Supreme Court also improvidently exercised its discretion in, sua sponte,directing the dismissal of the complaint pursuant to CPLR 3215 (c), as no extraordinarycircumstances existed to warrant dismissal (see HSBC Bank USA, N.A. v Alexander, 124 AD3d 838,839 [2015]). In September 2007, when the plaintiff took the preliminary step ofobtaining a default judgment of foreclosure and sale by moving for an order of reference(see RPAPL 1321 [1]), it initiated proceedings for the entry of the defaultjudgment within one year of the defendant's default and, thus, did not abandon this action(see CPLR 3215 [c]; seeUS Bank N.A. v Dorestant, 131 AD3d 467 [2015]; GMAC Mtge., LLC v Todaro,129 AD3d 666 [2015]; HSBC Bank USA, N.A. v Alexander, 124 AD3d 838[2015]). Dillon, J.P., Hall, Roman and Duffy, JJ., concur.