Christiana Trust v. Corbin

219 A.D.3d 686

195 N.Y.S.3d 69

CHRISTIANA TRUST, etc., respondent,

v.Anthony CORBIN, et al., defendants,Hancock Realty II, Inc., appellant.

2020-05487, 2023-06251

Index No. 504869/14

Supreme Court, Appellate Division, Second Department, New York.

Submitted—February 10, 2023

August 16, 2023

The Rosenfeld Law Office, Lawrence, NY (Avinoam Rosenfeld of counsel), for appellant.

Steve Okenwa, P.C., Brooklyn, NY, for respondent.

MARK C. DILLON, J.P., JOSEPH J. MALTESE, LARA J. GENOVESI, JANICE A. TAYLOR, JJ.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Hancock Realty II, Inc., appeals from two orders of the Supreme Court, Kings County (Noach Dear, J.), both dated February 18, 2020. The first order, insofar as appealed from, granted those branches of the plaintiff's motion which were (1) for leave to reargue its opposition to the cross-motion of the defendant Hancock Realty II, Inc., pursuant to CPLR 3025(b) for leave to amend its answer, (2), in effect, for leave to reargue its opposition to that branch of that defendant's separate cross-motion which was to dismiss the complaint insofar as asserted against it as time-barred, and (3) for leave to reargue those branches of the plaintiff's prior motion which were for summary judgment on the complaint insofar as asserted against that defendant and for an order of reference, which cross-motions and prior motion had been determined in an order of the same court (Gloria M. Dabiri, J.) dated November 3, 2016, and, upon reargument, in effect, vacated so much of the order dated November 3, 2016, as granted that defendant's cross-motion pursuant to CPLR 3025(b) for leave to amend its answer and that branch of that defendant's separate cross-motion which was to dismiss the complaint insofar as asserted against it as time-barred and denied those branches of the plaintiff's prior motion which were for summary judgment on the complaint insofar as asserted against that defendant and for an order of reference, and thereupon denied that defendant's cross-motion pursuant to CPLR 3025(b) for leave to amend its answer and that branch of that defendant's separate cross-motion which was to dismiss the complaint insofar as asserted against it as time-barred and granted those branches of the plaintiff's prior motion which were for summary judgment on the complaint insofar as asserted against that defendant and for an order of reference. The second order, insofar as appealed from, in effect, granted the same relief to the plaintiff and appointed a referee to compute the amount due to the plaintiff.

ORDERED that the first order dated February 18, 2020, is modified, on the law and in the exercise of discretion, by deleting the provisions thereof granting those branches of the plaintiff's motion which were for leave to reargue its opposition to the cross-motion of the defendant Hancock Realty II, Inc., pursuant to CPLR 3025(b) for leave to amend its answer and those branches of the plaintiff's prior motion which were for summary judgment on the complaint insofar as asserted against that defendant and for an order of reference, and, upon reargument, in effect, vacating so much of the order dated November 3, 2016, as granted that defendant's cross-motion pursuant to CPLR 3025(b) for leave to amend its answer and denied those branches of the plaintiff's prior motion which were for summary judgment on the complaint insofar as asserted against that defendant and for an order of reference, and thereupon denying that cross-motion and granting those branches of the prior motion, and substituting therefor provisions denying those branches of the plaintiff's motion which were for leave to reargue its opposition to the cross-motion of that defendant pursuant to CPLR 3025(b) for leave to amend its answer and those branches of the plaintiff's prior motion which were for summary judgment on the complaint insofar as asserted against that defendant and for an order of reference; as so modified, the first order dated February 18, 2020, is affirmed insofar as appealed from, so much of the order dated November 3, 2016, as granted the cross-motion of the defendant Hancock Realty II, Inc., pursuant to CPLR 3025(b) for leave to amend its answer and denied those branches of the plaintiff's prior motion which were for summary judgment on the complaint insofar as asserted against that defendant and for an order of reference is reinstated, and so much of the second order dated February 18, 2020, as, in effect, granted those branches of the plaintiff's motion which were for leave to reargue its opposition to the cross-motion of the defendant Hancock Realty II, Inc., pursuant to CPLR 3025(b) for leave to amend its answer and for leave to reargue those branches of the plaintiff's prior motion which were for summary judgment on the complaint insofar as asserted against that defendant and for an order of reference, and, upon reargument, in effect, vacated so much of the order dated November 3, 2016, as granted that defendant's cross-motion pursuant to CPLR 3025(b) for leave to amend its answer and denied those branches of the plaintiff's prior motion which were for summary judgment on the complaint insofar as asserted against that defendant and for an order of reference, and thereupon denied that cross-motion and granted those branches of the prior motion and appointed a referee to compute the amount due to the plaintiff is vacated; and it is further, ORDERED that the appeal from so much of the second order dated February 18, 2020, as, in effect, granted those branches of the plaintiff's motion which were for leave to reargue its opposition to the cross-motion of the defendant Hancock Realty II, Inc., pursuant to CPLR 3025(b) for leave to amend its answer and those branches of the plaintiff's prior motion which were for summary judgment on the complaint insofar as asserted against that defendant and for an order of reference, and, upon reargument, in effect, vacated so much of the order dated November 3, 2016, as granted that defendant's cross-motion pursuant to CPLR 3025(b) for leave to amend its answer and denied those branches of the plaintiff's prior motion which were for summary judgment on the complaint insofar as asserted against that defendant and for an order of reference, and thereupon denied that cross-motion and granted those branches of the prior motion and appointed a referee to compute the amount due to the plaintiff is dismissed as academic in light of our determination on the appeal from the first order dated February 18, 2020; and it is further,

ORDERED that the second order dated February 18, 2020, is affirmed insofar as reviewed; and it is further,

ORDERED that one bill of costs is awarded to the defendant Hancock Realty II, Inc.

In May 2014, the plaintiff commenced this action against the defendant Hancock Realty II, Inc. (hereinafter the defendant), among others, to foreclose a mortgage encumbering certain real property located in Brooklyn. In June 2014, the defendant interposed an answer.

The plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant and for an order of reference. The defendant cross-moved pursuant to CPLR 3025(b) for leave to amend its answer to assert an affirmative defense based on the statute of limitations. The defendant separately cross-moved, among other things, to dismiss the complaint insofar as asserted against it as time-barred. By order dated November 3, 2016, the Supreme Court, inter alia, granted the defendant's cross-motion, granted that branch of the defendant's separate cross-motion, and denied those branches of the plaintiff's motion.

The plaintiff subsequently moved, inter alia for leave to reargue its opposition to the defendant's cross-motion for leave to amend its answer, in effect, for leave to reargue its opposition to that branch of the defendant's separate cross-motion which was to dismiss the complaint insofar as asserted against it as time-barred, and for leave to reargue those branches of its prior motion which were for summary judgment on the complaint insofar as asserted against the defendant and for an order of reference. In an order dated February 18, 2020, the Supreme Court, among other things, upon reargument, denied the defendant's cross-motion for leave to amend its answer, denied that branch of the defendant's separate cross-motion which was to dismiss the complaint insofar as asserted against it as time-barred, and granted those branches of the plaintiff's prior motion which were for summary judgment on the complaint insofar as asserted against the defendant and for an order of reference. In a second order, also dated February 18, 2020, the court, inter alia, granted the same relief to the plaintiff and appointed a referee to compute the amount due to the plaintiff. The defendant appeals.

A motion for leave to reargue "shall be based upon matters of fact or law...