GMAC Mortg., LLC v. Spindelman
| Decision Date | 11 February 2016 |
| Citation | 136 A.D.3d 1366,25 N.Y.S.3d 484 |
| Parties | GMAC MORTGAGE, LLC, Successor by Merger to GMAC Mortgage Corporation, Formerly Known as GMAC Mortgage Corporation of PA, Plaintiff–Respondent, v. Michael H. SPINDELMAN and Margaret A. Spindelman, Defendants–Appellants. |
| Court | New York Supreme Court — Appellate Division |
136 A.D.3d 1366
25 N.Y.S.3d 484
GMAC MORTGAGE, LLC, Successor by Merger to GMAC Mortgage Corporation, Formerly Known as GMAC Mortgage Corporation of PA, Plaintiff–Respondent,
v.
Michael H. SPINDELMAN and Margaret A. Spindelman, Defendants–Appellants.
Supreme Court, Appellate Division, Fourth Department, New York.
Feb. 11, 2016.
Drew & Drew, LLP, Buffalo (Dean M. Drew of Counsel), for Defendants–Appellants.
Hinshaw & Culbertson LLP, New York City (Benjamin Noren of Counsel), for Plaintiff–Respondent.
PRESENT: WHALEN, P.J., CENTRA, PERADOTTO, CARNI, AND SCUDDER, JJ.
MEMORANDUM:
After plaintiff commenced this mortgage foreclosure action, a default judgment of foreclosure was entered against defendants in April 2008. Five years later, defendants moved to vacate the judgment pursuant to CPLR 5015(a)(1) contending, inter alia, that plaintiff lacked standing to commence the action against them. Supreme Court denied that motion, concluding that defendants had waived their right to assert the affirmative defense of plaintiff's lack of standing to commence the action and that, in any event, plaintiff had standing to commence the action. Defendants' appeal from that order was dismissed for failure to perfect (see 22 NYCRR 1000.12 ).
Meanwhile, defendants filed a motion that was identified as a motion for leave to reargue the motion to vacate. Attached to that motion, however, were documents not previously submitted on the motion to vacate. The court informed the parties that it was treating the motion as a "hybrid" motion for leave to reargue and leave to renew and permitted them to submit additional documentary evidence. Ultimately, the court denied the motion for leave to reargue and leave to renew "in all respects." Defendants now appeal from the order denying that motion.
Plaintiff contends that this appeal is not properly before us because defendants' motion was "identified specifically" as a
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