Opinion
04-14-2016
COUNTRY WIDE HOME LOANS, INC., Plaintiff–Appellant, v. Gonzalo 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.
David M. Namm, P.C., Mineola (David M. Namm of counsel), for appellant.
Charles Wallshein, Melville, for respondent.
Opinion
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 calendar.
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 A.D.2d 448, 448, 543 N.Y.S.2d 907 [1st Dept.1989]; Hurley v. State of New York, 200 A.D.2d 715, 715, 608 N.Y.S.2d 871 [2nd Dept.1994] ).
We have considered plaintiff's remaining contentions and find them unavailing. MAZZARELLI, J.P., ACOSTA, MOSKOWITZ, GISCHE, WEBBER, JJ., concur.