Wells Fargo Bank v. Allen

Full title: Wells Fargo Bank, etc., respondent, v. Demetra Allen, appellant, et al.…

Court: SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department

Date published: Jul 8, 2015

130 A.D.3d 717 (N.Y. App. Div. 2015)

2015 N.Y. Slip Op. 5935

11 N.Y.S.3d 876

Opinion

2013-10841

07-08-2015

Wells Fargo Bank, etc., respondent, v. Demetra Allen, appellant, et al., defendants.

David A. Bythewood, Mineola, N.Y, for appellant. Eckert Seamans Cherin & Mellott, LLC, White Plains, N.Y. (Geraldine A. Cheverko of counsel), for respondent.

REINALDO E. RIVERA, J.P.

THOMAS A. DICKERSON

ROBERT J. MILLER

COLLEEN D. DUFFY, JJ. (Index No. 23227/11)

David A. Bythewood, Mineola, N.Y, for appellant.

Eckert Seamans Cherin & Mellott, LLC, White Plains, N.Y. (Geraldine A. Cheverko of counsel), for respondent.

DECISION & ORDER

In an action to foreclose a mortgage, the defendant Demetra Allen appeals from an order of the Supreme Court, Queens County (Dufficy, J.), dated June 7, 2013, which denied her motion for leave to renew and reargue her opposition to the plaintiff's motion for summary judgment on the complaint and for the appointment of a referee to compute the amounts due it and her cross motion for summary judgment dismissing the complaint, which motion and cross motion were decided by an order of the same court dated March 4, 2013.

ORDERED that the appeal from so much of the order dated June 7, 2013, as denied that branch of the motion which was for leave to reargue is dismissed, as no appeal lies from an order denying reargument (see Bank of N.Y. v Waters, 127 AD3d 1005); and it is further,

ORDERED that the order dated June 7, 2013, is affirmed insofar as reviewed; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

The Supreme Court properly denied that branch of the appellant's motion which was for leave to renew her opposition to the plaintiff's motion for summary judgment on the complaint and for the appointment of a referee to compute the amounts due it and her cross motion for summary judgment dismissing the complaint insofar as asserted against her. The appellant presented no reasonable justification for failing to submit the purportedly new evidence at the time of the original motion and cross motion (see CPLR 2221[e][3]; Zelouf Intern. Corp. v Rivercity, LLC, 123 AD3d 1116). In any event, the appellant failed to demonstrate that the new evidence submitted would have changed the prior determination (see CPLR 2221[e][2]; Bauman v Ottaviano, 126 AD3d 742).

RIVERA, J.P., DICKERSON, MILLER and DUFFY, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court