Wells Fargo Bank v. Gittens

• Docket Number: Index No. 519049/16,2019-07765
• Decision Date: 21 June 2023
• Citation: 2023 NY Slip Op 03373
• Parties: Wells Fargo Bank, N.A., Respondent, v. Denis Gittens, et al., Appellants, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

2023 NY Slip Op 03373

Wells Fargo Bank, N.A., Respondent, v. Denis Gittens, et al., Appellants, et al., Defendants.

Index No. 519049/16, No. 2019-07765

Supreme Court of New York, Second Department

June 21, 2023

Biolsi Law Group, P.C., New York, NY (Steven Alexander Biolsi of counsel), for appellants.

LOGS Legal Group (Reed Smith LLP, New York, NY [Andrew B. Messite and James N. Faller], of counsel), for respondent.

BETSY BARROS, J.P., JOSEPH J. MALTESE, DEBORAH A. DOWLING, HELEN VOUTSINAS, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendants Denis Gittens and Rita T. Gittens appeal from an order of the Supreme Court, Kings County (Noach Dear, J.), dated March 27, 2019. The order, insofar as appealed from, granted those branches of the plaintiff's motion, which were denominated as ones for summary judgment on the complaint insofar as asserted against the defendants Denis Gittens and Rita T. Gittens and for an order of reference, but which were, in actuality, one for leave to renew the plaintiff's prior motion for summary judgment on the complaint insofar as asserted against those defendants and for an order of reference, which had been denied in an order of the same court dated November 6 2017.

ORDERED that the order dated March 27, 2019, is reversed insofar as appealed from, on the law, with costs, and those branches of the plaintiff's motion, which were denominated as ones for summary judgment on the complaint insofar as asserted against the defendants Denis Gittens and Rita T. Gittens and for an order of reference, but which were, in actuality, one for leave to renew the plaintiff's prior motion for summary judgment on the complaint insofar as asserted against those defendants and for an order of reference are denied.

The plaintiff commenced this action to foreclose a mortgage against the defendants Denis Gittens and Rita T. Gittens (hereinafter together the defendants), among others. The defendants interposed an answer asserting several affirmative defenses, including the plaintiff's failure to comply with the contractual notice provisions of the note and mortgage and failure to comply with RPAPL 1304. The plaintiff moved for summary judgment on the complaint insofar as asserted against the defendants and for an order of reference. In an order dated November 6, 2017, the Supreme Court denied the plaintiff's motion.

Thereafter the plaintiff again made a motion (hereinafter the second motion), certain branches of which were denominated as ones for summary judgment on the complaint insofar as asserted against the defendants and for an order of reference. In an order dated March 27, 2019, the Supreme Court, among other things, granted those branches of the second motion. The defendants appeal.

Although certain branches of the second motion were denominated as ones for summary judgment on the complaint insofar as asserted against the defendants and for an order of reference, those branches were, in actuality, one for leave to renew the plaintiff's prior motion for summary judgment on the complaint insofar as asserted against the defendants and for an order of reference. The new evidence supporting the second motion could have been submitted by the plaintiff in support of its prior motion (see CPLR 2221; Wells Fargo Bank, N.A. v Osias, 205 A.D.3d 979, 981).

"While a court has discretion to entertain renewal based on facts known to the movant at the time of the original motion, the movant must set forth a reasonable justification for the failure to submit the information in the first instance. When no reasonable justification is given for failing to present new facts on the prior motion, the Supreme Court lacks discretion to grant renewal" (Wells Fargo Bank, N.A v Osias, 205 A.D.3d at 981 [citations and internal quotation marks omitted]). Here, as the defendants contend the plaintiff failed to provide any justification for its failure to present...