

Bank of N.Y. v Waters (2015 NY Slip Op 03310)





Bank of N.Y. v Waters


2015 NY Slip Op 03310


Decided on April 22, 2015


Appellate Division, Second 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 22, 2015
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

MARK C. DILLON, J.P.
THOMAS A. DICKERSON
L. PRISCILLA HALL
HECTOR D. LASALLE, JJ.


2014-03658
 (Index No. 2283/08)

[*1]Bank of New York, etc., appellant,
v Tania Waters, et al., respondents, et al., defendants.


Shapiro, DiCaro & Barak, LLC, Rochester, N.Y. (Ellis M. Oster of counsel), for appellant.

DECISION & ORDER
In an action to foreclose a mortgage, the plaintiff appeals from an order of the Supreme Court, Kings County (Saitta, J.), dated March 13, 2014, which denied its motion, in effect, for leave to renew and reargue its prior motion, pursuant to RPAPL 1321, for an order of reference, which had been denied in an order of the same court dated April 15, 2013.
ORDERED that the appeal from so much of the order dated March 13, 2014, as denied, in effect, that branch of the appellant's motion which was for leave to reargue is dismissed, without costs or disbursements, as no appeal lies from an order denying reargument (see US Bank, N.A. v Morrison, 120 AD3d 1222); and it is further,
ORDERED that the order dated March 13, 2014, is affirmed insofar as reviewed, without costs or disbursements.
The Supreme Court properly denied, in effect, that branch of the plaintiff's motion which was for leave to renew its prior motion, pursuant to RPAPL 1321, for an order of reference. The plaintiff failed to present "new facts not offered on the prior motion that would change the prior determination" (CPLR 2221[e][2]; see PII Sam, LLC v Mazzurco, 121 AD3d 1063, 1064). Moreover, the plaintiff presented no reasonable justification for failing to submit the purportedly new evidence when it previously moved for the same relief (see CPLR 2221[e][3]; Deutsche Bank Trust Co. v Ghaness, 100 AD3d 585, 586). A motion for leave to renew "is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation" (Jovanovic v Jovanovic, 96 AD3d 1019, 1020; see Fardin v 61st Woodside Assoc., 125 AD3d 593).
DILLON, J.P., DICKERSON, HALL and LASALLE, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


