Summary
This Appellate Division, Second Department decision addresses a plaintiff's appeal from a trial court order denying leave to reargue and renew its opposition to a defendants' motion for summary judgment in a mortgage foreclosure action. The appellate court dismissed the portion of the appeal challenging the denial of reargument, noting that such orders are generally not appealable, and affirmed the lower court's grant of summary judgment to the defendants based on the expiration of the statute of limitations. The court also upheld the award of attorneys' fees to the defendants.
Topics
Practice areas
Questions Presented
- Whether an appeal lies from an order denying a motion for leave to reargue.
- Whether the plaintiff's motion for leave to reargue should be denied for lack of new facts and justification.
Holdings
- No appeal lies from an order denying a motion for leave to reargue; the motion to dismiss the appeal is granted in part.
- The motion for leave to reargue is properly denied because the plaintiff failed to show new facts that would change the prior determination and failed to provide reasonable justification for the failure to present such facts.
Key quotations
“A motion for leave to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination" (CPLR 2221[e][2]) and "shall contain reasonable justification for the failure to present such facts on the prior motion" (id. § 2221[e][3]; see Wilmington Sav. Fund Socy. FSB v Khandaker, 217 AD3d 729, 730).”
Factual background
In September 2017 Joseph Aloi commenced a foreclosure action against Manuel R. Tobal, Jr., Jesus R. Landaez, Maria Elena Nunez, and Tierra Mar & Fuego, LLC concerning Bronx real property. Defendants asserted the statute of limitations as an affirmative defense and obtained summary judgment and an award of attorneys' fees. Aloi later moved for leave to reargue the denial of his motion, which was denied.
Procedural history
The plaintiff filed a foreclosure action in September 2017. Defendants moved for summary judgment asserting the statute of limitations and obtained a fee award. The plaintiff sought leave to reargue the denial of his motion. The trial court denied the leave to reargue and the appellate division affirmed the order, dismissing the appeal as no appeal lies from a denial of reargument.