Onewest Bank v. Slowek
| Decision Date | 13 March 2014 |
| Citation | 115 A.D.3d 1083,982 N.Y.S.2d 193,2014 N.Y. Slip Op. 01654 |
| Parties | ONEWEST BANK, FSB, Respondent, v. Carol A. SLOWEK et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
OPINION TEXT STARTS HERE
Ianniello Anderson, P.C., Clifton Park (Matthew I. Mazur of counsel), for appellants.
Stein Weiner & Roth, LLP, Carle Place (Jonathan M. Cohen of counsel), for respondent.
Before: LAHTINEN, J.P., STEIN, McCARTHY and EGAN JR., JJ.
LAHTINEN, J.P.
Appeal from an order of the Supreme Court (Ferradino, J.), entered August 28, 2012 in Saratoga County, which denied defendants' motion for renewal.
Plaintiff commenced this mortgage foreclosure action and, although defendants defaulted, the default judgment was vacated by stipulation in September 2011. Defendants then answered and eventually made a motion to, among other things, compel discovery. Plaintiff cross-moved to discontinue the action without prejudice and defendants did not submit papers in opposition to the cross motion, which was returnable on April 6, 2012. On April 19, 2012, Supreme Court granted plaintiff's cross motion and denied defendants' motion as moot. In May 2012, defendants moved pursuant to CPLR 2221 for renewal regarding both motions. Supreme Court denied the motion and defendants appeal.
Finding no abuse of discretion, we affirm. “Motions for leave to renew are left to the sound discretion of the trial court” (Matter of City of New York v. New York State Pub. Empl. Relations Bd., 103 A.D.3d 145, 152, 956 N.Y.S.2d 689 [2012],lv. denied21 N.Y.3d 855, 2013 WL 1876250 [2013] [citations omitted] ) and such motions are “not a second chance to remedy inadequacies that occurred in failing to exercise due diligence in the first instance” ( Tibbits v. Verizon N.Y., Inc., 40 A.D.3d 1300, 1303, 836 N.Y.S.2d 727 [2007] ). Here, defendants failed to submit any opposition to plaintiff's cross motion to discontinue. Defendants indicated in their motion to renew that there had been communication with plaintiff's counsel regarding an adjournment and additional time to respond. However, the court found this excuse unavailing since no effort had been made to notify the court of such communication or to seek an adjournment from the court. Defendants did not object at the time the cross motion was made to the short time for responding nor did they indicate to the court that additional time was needed to respond.
Moreover, Supreme Court determined that, in any event, defendants had not...
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...103 A.D.3d 145, 152, 956 N.Y.S.2d 689 [2012], lv. denied 21 N.Y.3d 855, 2013 WL 1876250 [2013] ; accord Onewest Bank, FSB v. Slowek, 115 A.D.3d 1083, 1083, 982 N.Y.S.2d 193 [2014] ). After Supreme Court determined in its December 2012 order that plaintiff failed to properly serve Lichten an......
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...have the same rights as were available" here should plaintiffs commence a future action involving them ( Onewest Bank, FSB v. Slowek, 115 A.D.3d 1083, 1084, 982 N.Y.S.2d 193 [2014] ; see Christenson v. Gutman, 249 A.D.2d at 806, 671 N.Y.S.2d 835 ). Lyme therefore failed to demonstrate preju......
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