Opinion
2021-03575 Index 507839/15
06-09-2021
Everhome Mortgage Company, etc., appellant, v. Nuchem Aber, et al., defendants, Equity Recovery Corporation, respondent.
McGlinchey Stafford, PLLC, New York, NY (Kristen D. Romano and Brian S. McGrath of counsel), for appellant.
McGlinchey Stafford, PLLC, New York, NY (Kristen D. Romano and Brian S. McGrath of counsel), for appellant.
MARK C. DILLON, J.P., ROBERT J. MILLER, BETSY BARROS, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Kings County (Noach Dear, J.), dated December 29, 2017. The order, insofar as appealed from, denied that branch of the plaintiff's motion which was for leave to renew (1) its opposition to the prior motion of the defendant Equity Recovery Corporation pursuant to CPLR 3211(a)(5) to dismiss the amended complaint insofar as asserted against it as time-barred, to cancel a notice of pendency filed against the subject property, and for summary judgment on its counterclaim pursuant to RPAPL article 15 to cancel and discharge of record the mortgage, and (2) those branches of the plaintiff's prior cross motion which were for summary judgment on the complaint insofar as asserted against the defendants Nuchem Aber and Equity Recovery Corporation, to strike their answer, and for an order of reference, which were determined in an order of the same court dated June 6, 2017.
ORDERED that the order dated December 29, 2017, is affirmed insofar as appealed from, without costs or disbursements.
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" (CPLR 2221[e][2]). Here, in support of the branch of its motion which was for leave to renew, the plaintiff argued that a recent case had effected a change in the law that would change the prior determination (see Nationstar Mtge., LLC v MacPherson, 56 Misc.3d 339, 351 [Sup Ct, Suffolk County]). However, the holding cited by the plaintiff has been rejected by New York appellate courts (see Bank of N.Y. Mellon v Dieudonne, 171 A.D.3d 34; Capital One, N.A. v Saglimbeni, 170 A.D.3d 508, 509; HSBC Bank USA v Kirschenbaum, 159 A.D.3d 506, 507; see also Mohen v Stepanov, 59 A.D.3d 502, 504).
Accordingly, the Supreme Court properly denied that branch of the plaintiff's motion which was for leave to renew.
DILLON, J.P., MILLER, BARROS and CONNOLLY, JJ., concur.