| JPMorgan Chase Bank, N.A. v Novis |
| 2018 NY Slip Op 00281 [157 AD3d 776] |
| January 17, 2018 |
| Appellate Division, Second Department |
[*1]
| JPMorgan Chase Bank, National Association,Respondent, v Jeffrey Novis, Appellant, et al., Defendants. |
Jay A. Press, P.C., Plainview, NY (Ray E. Shain of counsel), for appellant.
Jeffrey A. Kosterich, LLC, Tuckahoe, NY, for respondent.
Appeal from an order of the Supreme Court, Nassau County (Thomas A. Adams, J.), enteredNovember 12, 2015. The order granted the motion of Wilmington Savings Fund Society, FSB,which was for leave to renew and reargue its prior motion, inter alia, for summary judgment onthe complaint insofar as asserted against the defendant Jeffrey Novis and to be substituted asplaintiff in this action, which motion had been denied in a prior order dated June 3, 2015, and,upon renewal and reargument, vacated the prior order and granted the prior motion.
Ordered that the order entered November 12, 2015, is reversed, on the facts and in theexercise of discretion, with costs, the motion of Wilmington Savings Fund Society, FSB, whichwas for leave to renew and reargue its prior motion is denied, and the order dated June 3, 2015, isreinstated.
In September 2007, the defendant Jeffrey Novis (hereinafter the defendant) executed, infavor of the plaintiff, a promissory note in the amount of $772,000, and a mortgage on certainreal property located in Woodbury. In August 2011, the plaintiff commenced this action toforeclose the mortgage against, among others, the defendant.
After the defendant filed an answer, which raised lack of standing as an affirmative defense,nonparty Wilmington Savings Fund Society, FSB (hereinafter Wilmington), moved, inter alia,for summary judgment on the complaint insofar as asserted against the defendant and to besubstituted as the plaintiff in this action. The Supreme Court denied Wilmington's motion.Thereafter, Wilmington moved for leave to renew and reargue its motion. The court granted themotion for leave to renew and reargue, and thereupon vacated the order dated June 3, 2015, andgranted Wilmington's prior motion. The defendant appeals.
A motion for leave to renew must be based upon new facts not offered on the prior motionthat would change the prior determination and must contain reasonable justification for thefailure to present such facts on the prior motion (see CPLR 2221 [e] [2]). While a courthas discretion to entertain renewal based on facts known to the movant at the time of the originalmotion, the movant must set forth a reasonable justification for the failure to submit theinformation in the first instance (seeProfessional Offshore Opportunity Fund, Ltd. v Braider, 121 AD3d 766, 769 [2014]; Deutsche Bank Trust Co. v Ghaness,100 AD3d 585, 586 [2012]). Renewal "is not a second chance freely given to parties whohave not exercised due diligence in making their first factual presentation" (Jovanovic v Jovanovic, 96 AD3d1019, 1020 [2012]; see Fardin v61st Woodside Assoc., 125 AD3d 593 [2015]).
[*2] Here, the Supreme Court should have denied that branch ofWilmington's motion which was for leave to renew. The new materials that Wilmington reliedupon were available to it prior to the date on which it filed its motion. Yet, Wilmington failed toset forth a reasonable justification for failing to present the new facts on the original motion.Thus, the court improvidently exercised its discretion in granting that branch of the motion whichwas for leave to renew (see Robinson vViani, 140 AD3d 845, 848 [2016]; Deutsche Bank Trust Co. v Ghaness, 100AD3d at 586).
The Supreme Court also improvidently exercised its discretion in granting leave to reargue.A motion for leave to reargue is similarly directed to the trial court's discretion and, to warrantreargument, the moving party must demonstrate that the court overlooked or misapprehended therelevant facts or misapplied law (see CPLR 2221 [d]; Barnett v Smith, 64 AD3d 669 [2009]). Here, contrary toWilmington's contention, the court, in its initial determination, did not overlook or misapprehendrelevant facts or misapply the law in deciding that Wilmington had failed to meet its prima facieburden on the issue of standing, thus requiring denial of its motion (see CPLR 4518 [a];Bank of N.Y. Mellon v Cutler, 154AD3d 910, 912 [2017]). Wilmington failed to demonstrate, prima facie, that the plaintiff,which was the originator of the loan, was still the holder of the note when it commenced theaction (see Aurora Loan Servs., LLC vTaylor, 25 NY3d 355, 361-362 [2015]; cf. Emigrant Mtge. Co., Inc. v Persad, 117 AD3d 676, 677[2014]).
In light of our determination, we need not reach the parties' remaining contentions.
Accordingly, we reverse the order granting Wilmington leave to renew and reargue its priormotion, deny the motion, and reinstate the order dated June 3, 2015. Hall, J.P., Austin, Sgroi andChristopher, JJ., concur.