Countrywide Home Loans Servicing, LP v Albert

Countrywide Home Loans Servicing, LP v Albert 2010 NY Slip Op 08693 [78 AD3d 985] November 23, 2010 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 19, 2011

Countrywide Home Loans Servicing, LP, Respondent,
v
Linda Albert, Appellant, et al., Defendants.

—[*1] Linda Albert, Mahopac, N.Y., appellant pro se.

Steven J. Baum, P.C., Buffalo, N.Y. (Timothy P. Seibold of counsel), for respondent.

In an action to foreclose a mortgage, the defendant Linda Albert appeals from so much of an order of the Supreme Court, Putnam County (O'Rourke, J.), dated July 1, 2009, as denied her motion, in effect, for leave to renew and reargue that branch of her motion which was to vacate a judgment of foreclosure and sale dated October 10, 2008.

Ordered that the appeal from so much of the order as denied that branch of the defendant Linda Albert's motion which was, in effect, for leave to reargue is dismissed, as no appeal lies from the denial of a motion for leave to reargue; and it is further,

Ordered that the order is affirmed insofar as reviewed; and it is further,

Ordered that one bill of costs is awarded to the respondent.

"A motion for leave to renew shall be based upon new facts not offered on the prior motion that would change the prior determination, and shall contain reasonable justification for the failure to present such facts on the prior motion" (Marrero v Crystal Nails, 77 AD3d 798, 799 [2010]; see CPLR 2221 [e]; Williams v Nassau County Med. Ctr., 37 AD3d 594 [2007]). Here, that branch of the defendant Linda Albert's motion which was, in effect, for leave to renew was properly denied, as the allegedly "new facts" offered would not have changed the prior determination (see CPLR 2221 [e] [2]).

The parties' remaining contentions are not properly before this Court. Dillon, J.P., Santucci, Dickerson and Chambers, JJ., concur.

Motion by the respondent to dismiss an appeal from an order of the Supreme Court, Putnam County, dated July 1, 2009, on the ground that no appeal lies from an order denying reargument. By decision and order on motion of this Court dated June 15, 2010, the motion was referred to the Justices hearing the appeal for determination upon the argument or submission of the appeal.

Upon the papers filed in support of the motion, the papers filed in opposition thereto, and upon the submission of the appeal, it is,

Ordered that the branch of the motion which is to dismiss the appeal from so much of the order as denied that branch of the appellant's motion which was, in effect, for leave to reargue is denied as academic in light of our determination of the appeal; and it is further,

Ordered that the motion is otherwise denied. Dillon, J.P., Santucci, Dickerson and Chambers, JJ., concur.