Opinion
10285N Index 17112/07
11-07-2019
GMAC MORTGAGE, LLC, Plaintiff-Appellant, v. Liza ORTIZ, et al., Defendants. Royal Realty of Kings, Inc., Nonparty Respondent.
RAS Boriskin, LLC, Westbury (Joseph F. Battista of counsel), for appellant. The Rosenfeld Law Office, Lawrence (Avi Rosenfeld of counsel), for respondent.
RAS Boriskin, LLC, Westbury (Joseph F. Battista of counsel), for appellant.
The Rosenfeld Law Office, Lawrence (Avi Rosenfeld of counsel), for respondent.
Richter, J.P., Webber, Gesmer, Oing, JJ.
Order, Supreme Court, Bronx County (Howard H. Sherman, J.), entered on or about July 5, 2018, which, upon deeming plaintiff's motion pursuant to CPLR 2221 as a motion pursuant to CPLR 5015(a) to vacate the pre-note of issue dismissal order, denied the motion, unanimously affirmed, with costs.
Plaintiff waived its right to challenge the dismissal of this foreclosure action when it voluntarily discontinued the action in 2013 (see OneWest Bank, FSB v. McKay , 172 A.D.3d 887, 888, 97 N.Y.S.3d 878 [2d Dept. 2019] ). In any event, the motion, brought four years after the action was dismissed, was properly denied. Plaintiff failed to offer any reasonable excuse for its failure to appear at a 2013 scheduled court conference (see Diaz v. Perlson , 168 A.D.3d 463, 89 N.Y.S.3d 619 [1st Dept. 2019] ), and despite plaintiff's claims to the contrary, there is no evidence that there were ongoing settlement negotiations between it and defendant Ortiz.