Bank of New York v Richard J. Castaldo

Bank of N.Y. v Castaldo 2004 NY Slip Op 08642 [12 AD3d 546] November 22, 2004 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 19, 2005

Bank of New York, Respondent,
v
Richard J. Castaldo, Jr., et al., Appellants.

—[*1]In an action to foreclose a mortgage, the defendants appeal from (1) an order of the Supreme Court, Orange County (McGuirk, J.), dated November 19, 2002, which denied their motion to dismiss the complaint pursuant to CPLR 3211, (2) an order of the same court dated May 29, 2003, which granted the plaintiff's motion for summary judgment and denied their motion, denominated as one for leave to renew and reargue, but which was, in effect, for leave to reargue their prior motion to dismiss the complaint and (3) an order of the same court dated August 21, 2003, which denied their motion, denominated as one for leave to renew and reargue, but which was also, in effect, for leave to reargue the plaintiff's motion for summary judgment.

Ordered that the appeal from so much of the order dated May 29, 2003, as denied the defendants' motion, in effect, for leave to reargue their prior motion, to dismiss the complaint pursuant to CPLR 3211, and the appeal from the order dated August 21, 2003, are dismissed, without costs or disbursements, as no appeal lies from an order denying reargument; and it is further,

Ordered that the order dated November 19, 2002, is affirmed, without costs or disbursements; and it is further,

Ordered that the order dated May 29, 2003, is affirmed insofar as reviewed, [*2]without costs or disbursements.

The Supreme Court properly determined that the plaintiff established its prima facie entitlement to summary judgment and that the defendants failed to present evidence sufficient to raise a triable issue of fact (see Federal Natl. Mtge. Assn. v Youkelsone, 303 AD2d 546 [2003]).

The defendants' remaining contentions are without merit. Schmidt, J.P., Cozier, Rivera and Fisher, JJ., concur.