

Country Wide Home Loans, Inc. v Dunia (2016 NY Slip Op 02919)





Country Wide Home Loans, Inc. v Dunia


2016 NY Slip Op 02919


Decided on April 14, 2016


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on April 14, 2016

Mazzarelli, J.P., Acosta, Moskowitz, Gische, Webber, JJ.


844 381771/09

[*1]Country Wide Home Loans, Inc., Plaintiff-Appellant,
vGonzalo J. Dunia, Defendant-Respondent, 
New York City Transit Adjudication Bureau, et al., Defendants.


David M. Namm, P.C., Mineola (David M. Namm of counsel), for appellant.
Charles Wallshein, Melville, for respondent.

Order, Supreme Court, Bronx County (Mitchell J. Danziger J.), entered September 25, 2014, which denied the motion of plaintiff Solo Group Series 9 LLC, as assignee to Country Wide Home Loans, Inc., to renew defendant's motion to dismiss the action, unanimously affirmed, with costs.
By order entered on or about April 2, 2014, the court granted defendant's motion to dismiss the action pursuant to CPLR 3215(c), based on plaintiff's failure to move for a default judgment within one year of defendant's failure to answer. The motion was granted on default, and without opposition. Plaintiff thereafter moved pursuant to CPLR 2221 for renewal of defendant's prior motion to dismiss, and upon renewal, to deny the motion and have the action restored to the calender.
The court properly denied plaintiff's motion since the prior order was granted on default, and the proper remedy for plaintiff was to move to vacate the default pursuant to CPLR 5015, rather than by motion to renew (see  CPLR § 5015[a][1]; Vasquez v Koret, Inc. , 151 AD2d 448, 448 [1st Dept 1989]; Hurley v State of New York , 200 AD2d 715, 715 [2nd Dept 1994]).
We have considered plaintiff's remaining contentions and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: APRIL 14, 2016
CLERK


