Opinion
No. 2013–1891.
02-14-2017
NBT BANK, N.A., Plaintiff,. v. CHAMPLAIN BLUFFS DEVELOPMENT CORP., J. David Dame, Maureen V. Dame, Glens Falls National Bank and Trust Company and New York State Department of Taxation and Finance–Corporation Tax, Defendants.
Menter, Rudin & Trivelpiece, P.C., Syracuse (Teresa M. Bennett and Antonio E. Caruso of counsel), for plaintiff. Niles & Bracy, PLLC, Plattsburgh (John F. Niles of counsel), for defendant J. David Dame.
Menter, Rudin & Trivelpiece, P.C., Syracuse (Teresa M. Bennett and Antonio E. Caruso of counsel), for plaintiff.
Niles & Bracy, PLLC, Plattsburgh (John F. Niles of counsel), for defendant J. David Dame.
ROBERT J. MULLER, J.
This foreclosure proceeding pertains to 79.43 acres of land in the Town of Plattsburgh, Clinton County, with frontage on Lake Champlain. The property has been the subject of a proposed subdivision intended to create 9 waterfront single family building lots and a larger number of interior lots.
The Court appointed Bryan J. Hughes, Esq. as referee by Order dated January 27, 2015. The parties thereafter stipulated to the amount due and owing—$1,210,839.77 as of July 28, 2015—but could not agree on whether the property should be sold in one parcel. As a result, the referee conducted a 2–day hearing on the issue. After listening to the testimony of 6 witnesses and receiving 19 exhibits into evidence, the referee submitted a detailed report finding that the Planning Board of the Town of Plattsburgh (hereinafter the Planning Board) had not yet approved the proposed subdivision and, further, was unlikely to approve it as a result of several issues. The referee concluded his report with a recommendation that the property be sold in one parcel.
Plaintiff subsequently moved for confirmation of this report and for a Judgment of Foreclosure and Sale. Defendant J. David Dame (hereinafter defendant) appeared in opposition to the motion, reiterating his position that the property should be sold in individual lots pursuant to the proposed subdivision plan filed with the Planning Board. The Court, however, was not persuaded and granted plaintiff's motion by Order and Judgment dated December 15, 2016.
Presently before the Court is defendant's motion by Order to Show Cause for leave to reargue or, alternatively, for leave to renew this Order and Judgment. Defendant also sought to stay the foreclosure sale pending a determination on the motion. A conference was held on January 20, 2017, following which the Court granted the requested stay by Order dated February 2, 2017. The Court now turns to the merits of the motion.
To succeed on a motion for leave to reargue, defendant must demonstrate that "the court has overlooked significant facts or misapplied the law in its original decision" ( Matter of Town of Poestenkill v. New York State Dept. of Envtl. Conservation, 229 A.D.2d 650, 650 [1996] ; see CPLR 2221[d] ; Matter of Ellsworth v. Town of Malta, 16 AD3d 948, 949 [2005] ). Here, defendant contends that the Court erred in overlooking the facts set forth in his "Supplementary Answering Affidavit" (hereinafter the Affidavit), sworn to on June 3, 2016. In opposition, plaintiff contends that the Affidavit was not overlooked by the Court. Rather, the Affidavit was found to be in the nature of a sur-reply and, as such, was not considered by the Court.
"Evidence that, though previously submitted, has not been previously accepted, is appropriately considered to be new evidence" ( Kasem v. Price–Rite Off. & Home Furniture, 21 AD3d 799, 801 [2005] [citations omitted] ). Further, where a "motion [is] based on new evidence, it is properly construed as [a motion] to renew" (id. )—not one to reargue. To the extent that the Affidavit was not accepted by the Court, defendant's motion for leave to reargue must be construed as a motion to renew. The Court therefore denies that aspect of defendant's motion seeking leave to reargue.
To succeed on a motion for leave to renew, defendant must "provide new facts that would change the prior determination as well as a justifiable excuse for not providing such facts earlier" ( Hurrell–Harring v. State of New York, 112 AD3d 1217, 1218 [2013] ; see CPLR 2221[e] ). Here, defendant contends that the Affidavit attached a determination from the Planning Board which approved his subdivision plans subject to a few ministerial acts. Defendant further contends that the June 2, 2016 determination would change the conclusion reached by the Court in its Order and Judgment, as the Court directed a sale of the premises in one parcel based upon the lack of subdivision approval. Finally, defendant contends that the Affidavit could not have been submitted earlier, as the determination was not issued until June 2, 2016.
In opposition, plaintiff first contends that the June 2, 2016 determination was not in existence at the time of the original motion—which was returnable on May 20, 2016—and, as such, cannot be considered on a motion for leave to renew.
"A motion for leave to renew must be supported by new or additional facts which, although in existence at the time of the prior motion, were not known to the party seeking renewal" ( Johnson v. Marquez, 2 AD3d 786, 788–789 [2003] ; see Matter of Kelly v. Director of TRC Programs, 84 AD3d 1657, 1657 [2011] ; Carbajal v. Bobo Robo, Inc., 38 AD3d 820, 822 [2007] ). Here, the June 2, 2016 determination was not in existence on the return date of the motion for confirmation of the Referee's report and a Judgment of Foreclosure and Sale. With that said, however, the motion remained pending at the time of issuance of the determination. The Court therefore declines to deny defendant's motion for leave to renew on this basis.
Plaintiff next contends that the June 2, 2016 determination would not change the December 15, 2016 Order and Judgment. More specifically, plaintiff contends that "the [r]eferee's inquiry into the advisability of a sale in lots did not end with the conclusion that the [p]remises could not be sold in parcels due to the failure to obtain final subdivision approval." Rather, according to plaintiff, the referee noted that a sale of the premises in lots was not advisable because of defendant's "failure to obtain the approval of the Attorney General of a Road Maintenance Agreement for the road accessing the lots, which would prevent a bank from financing the purchase of an individual lot" and his "failure to properly form and obtain Attorney General approval of a Homeowners Association, thereby rendering it unlawful to market the [p]remises for sale in lots."
It appears—based upon the Court's review of the referee's report—that defendant had to meet the conditions enumerated above in order to obtain final subdivision approval. To the extent that the June 2, 2016 determination grants final subdivision approval subject to a few ministerial acts—comprised largely of obtaining certified copies of various documents—it further appears that the conditions have now been met. The Court therefore finds that the June 2, 2016 determination would perhaps change the conclusion reached by the Court in its Order and Judgment, with the Court more likely to direct a sale of the premises in lots rather than in one parcel.
Finally, plaintiff contends that, even if the June 2, 2016 determination does constitute new or additional facts that would change the conclusion reached by the Court in its Order and Judgment, defendant has failed to establish a justifiable excuse for not obtaining the determination earlier. According to plaintiff, while the determination was not rendered until after the return date of the motion, "[defendant] has no one to blame but himself for the delay, as the delay was caused by his failure to satisfy the conditions of preliminary subdivision approval received on April 8, 2008, eight and a half years ago." Plaintiff further notes that "the current obstacle to a sale of the [p]remises in lots is [defendant's] intentional refusal to file the final subdivision plans."
Defendant states in his affidavit that he has not yet completed the steps necessary to finalize subdivision approval because he "does not wish to trigger a huge increase in taxes." Plaintiff, however, notes that defendant has not paid taxes on the premises in several years and thus questions his motivation.
A motion for leave to reargue cannot be "based on evidence that could have been discovered earlier with due diligence" ( Ford v. Lasky, 300 A.D.2d 536, 536 [2002] ; see Matter of Jones v. Hickey, 126 AD3d 1247, 1248 [2015], appeal dismissed 26 NY3d 950 [2015] ).
Under the circumstances, the Court finds that the June 2, 2016 determination would have been rendered earlier had defendant diligently pursued his application for subdivision approval before the Planning Board. As observed by the referee in his Report:
"My impression [is] that [defendant's] game plan is to delay this matter Ad Nauseam, on the almost disdainful conviction that the mortgaged premises will never be sold as a result of these proceedings."
Under the circumstances, the Court finds that defendant has failed to provide a justifiable excuse for his failure to obtain the Planning Board's subdivision approval earlier. The Court therefore denies that aspect of defendant's motion seeking leave to renew.
Based upon the foregoing, the stay of the foreclosure sale—as previously granted by Order dated February 2, 2017—is lifted and plaintiff is permitted to proceed.
Therefore, having considered the Affidavit of J. David Dame with exhibits attached thereto, sworn to January 6, 2017, submitted in support of the motion; Affidavit of Antonio E. Caruso, Esq. with exhibits attached thereto, sworn to January 18, 2017, submitted in opposition to the motion; Memorandum of Law of Teresa M. Bennett, Esq., dated January 18, 2017, submitted in opposition to the motion, it is hereby
ORDERED that defendant J. David Dame's motion is denied in its entirety; and it is further
ORDERED that the stay of the foreclosure sale—as previously granted by Order dated February 2, 2017—is lifted and plaintiff is permitted to proceed.
The original of this Decision and Order has been filed by the Court together with the submissions enumerated above. Counsel for plaintiff is hereby directed to promptly obtain a filed copy of the Decision and Order for service with notice of entry upon defendants in accordance with CPLR 5513.