Summary
The Appellate Division, Second Department affirmed an order denying Allen J. Morton and Patsy J. Morton leave to renew their opposition to the plaintiff's prior motion for summary judgment and an order of reference in a mortgage foreclosure action. The court held that the defendants failed to show that the alleged new facts would have changed the prior determination and failed to provide a reasonable justification for not presenting those facts earlier.
Topics
Practice areas
Questions Presented
- Whether the defendants were entitled to leave to renew their opposition to the plaintiff's prior motion for summary judgment and an order of reference based on allegedly new facts.
- Whether the defendants provided a reasonable justification for failing to present the alleged new facts on the prior motion.
Holdings
- Leave to renew was properly denied because the defendants failed to demonstrate that the allegedly new facts would have changed the prior determination.
- Leave to renew was properly denied because the defendants failed to provide a reasonable justification for their failure to present the alleged new facts in opposition to the plaintiff's prior motion.
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 or shall demonstrate that there has been a change in the law that would change the prior determination" and "shall contain reasonable justification for the failure to present such facts on the prior motion"” ([*2])
Factual background
U.S. Bank commenced an action to foreclose a mortgage on real property in Mount Kisco against Allen J. Morton, Patsy J. Morton, and others. The Supreme Court granted U.S. Bank summary judgment on the complaint against the Mortons and an order of reference, later confirming the referee's report and entering a judgment of foreclosure and sale. After the Appellate Division affirmed that judgment, the Mortons sought leave to renew their opposition based on allegedly new facts, but failed to show that the facts would have changed the prior determination or that they had a reasonable justification for not presenting them earlier.
Procedural history
The Supreme Court denied defendants' motion to dismiss, later denied their motion for summary judgment, and granted U.S. Bank's motion for summary judgment and an order of reference. The court subsequently entered a judgment of foreclosure and sale, which the Appellate Division affirmed. Defendants then moved for leave to renew their opposition based on allegedly new facts, and the Supreme Court denied that branch of the motion; the Appellate Division affirmed.