Opinion
Index No. 702449/16
06-30-2022
U.S. BANK, N.A., in its Capacity as Trustee for the Registered Holders of MASTR Asset Backed Securities Trust 2005-NC2, Mortgage Pass Through Certificate, Series 2005-NC2, Plaintiff, v. NORBERTO NAVARRO, ET AL., Defendants.
Unpublished Opinion
Motion Date: October 4, 2021
Present: HONORABLE CARMEN R. VELASQUEZ Justice
SHORT FORM ORDER
CARMEN R. VELASQUEZ, J.S.C.
This motion by the defendant Norberto Navarro for leave to resettle this court's order dated December 21, 2017 and cross .motion by the plaintiff for leave to renew plaintiff's prior motion for summary judgment are decided as follows:
In this foreclosure action, pursuant to an order dated December 21, 2017, this court denied plaintiff's motion for summary judgment and granted the cross motion by defendant for summary judgment dismissing the complaint. The court directed cancellation pf the notice of pendency but did not cancel and . discharge the subject mortgage as requested in the prior motion.
A motion to renew is based upon additional material facts which existed at the-time of the prior application but were not made known to the party seeking otfo2 renew and, therefore, not made known to the court. (CPLR 2221[e]./ Matter of Brooklyn welding Corp. v Chin, 236 A.D.2d 392, 392 [2d Dept 1997];. Cannistra v Gibbons, 224 A.D.2d 570, 571 [2d Dept 1996].) The movant must present a reasonable justificati6n for the failure to present the additional facts on the prior motion. (CPLR 2221 [e] [3]; Renna v Gullo, 19 A.D.3d 472, 473 [2d Dept 2005]; Kaufman v Kunis, 14 A.D.3d 542, 542 [2d Dept 2005]; Baker v Monarch Life Ins. Co., 12 A.D.3d 630, 630 [2d Dept 2004].)
At bar, there was an express, contemporaneous statement that the plaintiff did not intend to revoke its prior acceleration of the mortgage when it c6mmenced a new action for the same default. (see Freedom Mtge. Corp. v Engel, 37 N.Y.3d 1, 32 [2021].) Indeed, plaintiff commenced an action in 2012 before an earlier 2009 action was discontinue.. Therefore, there is no basis to change the outcome of plaintiff's earlier motion.
Accordingly, this motion by the defendant Norberto Navarro for leave to resettle this court's order dated December 21, 2017 is granted.
The cross motion by plaintiff for leave to renew is denied.