| Central Mtge. Co. v Resheff |
| 2016 NY Slip Op 01283 [136 AD3d 962] |
| February 24, 2016 |
| Appellate Division, Second Department |
[*1]
| Central Mortgage Company,Respondent, v Doron Resheff et al., Defendants, and Karen Resheff,Appellant. |
J. Douglas Barics, Garden City, NY, for appellant.
Berkman, Henoch, Peterson, Peddy & Fenchel, P.C., Garden City, NY (Alan J.Waintraub, Lisa Baldesweiler, and Megan McNamara of counsel), for respondent.
In an action to foreclose a mortgage, the defendant Karen Resheff appeals (1), aslimited by her brief, from so much of an order of the Supreme Court, Westchester County(Loehr, J.), dated June 24, 2013, as, in effect, granted that branch of the plaintiff's motionwhich was for leave to renew its prior motion, inter alia, for summary judgment on thecomplaint, which had been denied in an order of the same court dated September 28,2012, and, upon renewal, in effect, vacated the determination in the order datedSeptember 28, 2012, and thereupon granted the plaintiff's motion for summary judgmenton the complaint insofar as asserted against Karen Resheff, and (2) from a judgment offoreclosure and sale of the same court (Jamieson, J.), dated April 25, 2014, which, uponthe order dated June 24, 2013, among other things, directed the sale of the subjectpremises.
Ordered that the appeal from the order dated June 24, 2013, is dismissed, withoutcosts or disbursements; and it is further,
Ordered that the judgment of foreclosure and sale is reversed, on the law, withoutcosts or disbursements, that branch of the plaintiff's motion which was for leave to renewits prior motion, inter alia, for summary judgment on the complaint is denied, and anorder of the Supreme Court, Westchester County, dated May 28, 2013, and the orderdated June 24, 2013, are modified accordingly.
The appeal from the order dated June 24, 2013 must be dismissed because the rightof direct appeal therefrom terminated with the entry of the judgment in the action (seeMatter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from thatorder are brought up for review and have been considered on the appeal from thejudgment (see CPLR 5501 [a] [1]; Matter of Aho, 39 NY2d at 248).
The plaintiff commenced this action to foreclose a mortgage against, among others,the defendant Karen Resheff, and thereafter moved for summary judgment on thecomplaint. In an order dated September 28, 2012, the Supreme Court denied summaryjudgment to the plaintiff on the ground that the plaintiff failed to submit sufficientevidence of the mortgagor's default. In two subsequent orders dated May 28, 2013, andJune 24, 2013, the court, upon granting the plaintiff [*2]leave to renew, in effect, vacated its determination in theSeptember 28, 2012, order and awarded summary judgment to the plaintiff. A judgmentof foreclosure and sale dated April 25, 2014, among other things, directed the sale of thesubject premises.
A motion for leave to renew "shall be based upon new facts not offered on the priormotion that would change the prior determination" (CPLR 2221 [e] [2]), and "shallcontain reasonable justification for the failure to present such facts on the prior motion"(CPLR 2221 [e] [3]). " 'A motion for leave to renew is not a second chancefreely given to parties who have not exercised due diligence in making their first factualpresentation' " (Kamdem-Ouaffo v Pepsico, Inc., 133 AD3d 828, 828[2015], quoting Elder vElder, 21 AD3d 1055, 1055 [2005]). " '[T]he Supreme Court lacksdiscretion to grant renewal where the moving party omits a reasonable justification forfailing to present the new facts on the original motion' " (Cioffi v S.M. Foods, Inc., 129AD3d 888, 891 [2015], quoting Jovanovic v Jovanovic, 96 AD3d 1019, 1020 [2012]; see Hlenski v City of NewYork, 51 AD3d 974, 974-975 [2008]).
Here, in support of that branch of its motion which was for leave to renew, theplaintiff failed to provide any explanation for its failure to present the new facts on theoriginal motion. Therefore, the Supreme Court should have denied that branch of theplaintiff's motion which was for leave to renew its prior motion, inter alia, for summaryjudgment on the complaint. Accordingly, the judgment of foreclosure and sale must bereversed, that branch of the plaintiff's motion which was for leave to renew its priormotion for summary judgment on the complaint denied, and the orders dated May 28,2013 and June 24, 2013 modified accordingly.
The parties' remaining contentions either are without merit or need not be reached inlight of our determination. Dickerson, J.P., Hall, Roman and Duffy, JJ., concur.