NAS PARTNERSHIP v. Kligerman

• Decision Date: 27 April 2000
• Citation: 706 N.Y.S.2d 753,271 A.D.2d 922
• Court: New York Supreme Court — Appellate Division
• Parties: N.A.S. PARTNERSHIP, Respondent,<BR>v.<BR>KENNETH KLIGERMAN, Appellant, et al., Defendants.

271 A.D.2d 922

706 N.Y.S.2d 753

N.A.S. PARTNERSHIP, Respondent,

v.KENNETH KLIGERMAN, Appellant, et al., Defendants.

Decided April 27, 2000.

Crew III, Carpinello, Graffeo and Mugglin, JJ., concur.

Cardona, P. J.

In August 1980, defendant Kenneth Kligerman (hereinafter defendant) purchased certain property located in the Town of Cairo, Greene County, from Arthur Uzzilia and executed a note and mortgage in favor of Uzzilia in connection with the transaction. Uzzilia died in June 1985 leaving a will which devised his interest in real property to his surviving spouse, Ann Uzzilia, and his residuary estate to the Arthur Uzzilia Revocable Trust (hereinafter the trust). In August 1996, the trust assigned its interest in the mortgage to plaintiff.

On March 3, 1997, plaintiff commenced this mortgage foreclosure action and filed a notice of pendency against the subject property in the office of the Greene County Clerk. On the same day, Ann Uzzilia, acting as executrix of Uzzilia's estate, executed an assignment of the mortgage to plaintiff which was recorded on March 12, 1997. Following joinder of issue, plaintiff moved for summary judgment. Supreme Court rendered a judgment of foreclosure and referred the matter to a Referee who scheduled a foreclosure sale for September 17, 1998. Prior to the sale, defendant moved for leave to renew and/or reargue his opposition to plaintiff's motion on the ground of newly discovered evidence. Plaintiff cross-moved for the imposition of sanctions. Supreme Court, inter alia, denied defendant's motion resulting in this appeal.

We affirm. Initially, we note that while the denial of that portion of defendant's motion seeking reargument is not appealable (see, Matter of Gilson v National Union Fire Ins. Co., 246 AD2d 897, 898; Pomygalski v Eagle Lake Farms, 192 AD2d 810, 812, lv denied 82 NY2d 656), defendant's argument on appeal is confined to the denial of that aspect of his motion seeking leave to renew. In order to prevail on a motion to renew, the movant must demonstrate "both new facts to support the motion and a justifiable excuse for not initially placing such facts before Supreme Court" (Wagman v Village of Catskill, 213 AD2d 775, 775-776; see, Matter of Gilson v National Union Fire Ins. Co., supra, at 898; Matter of Barnes v State of New York, 159 AD2d 753, lv dismissed 76 NY2d 935). This Court has recognized that "[r]enewal is by no means guaranteed and `is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation'" (Matter of Barnes v State of New York, supra, at 754, quoting Matter of Beiny, 132 AD2d 190, 210, lv dismissed 71 NY2d 994).

In his original papers in opposition to plaintiff's summary judgment motion, defendant challenged the validity of the assignment of mortgage on the ground that it was made without adequate consideration. Supreme Court rejected that argument and granted judgment in favor of plaintiff. In support of the motion for renewal, defendant cited deficiencies in the notice of pendency. Specifically, he argued...