Country Wide Home Loans, Inc. v. Dunia

138 A.D.3d 533, 28 N.Y.S.3d 319

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 14, 2016
• Docket: 844 381771/09
• Status: Published

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 calender.

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 AD2d 448, 448 [1st Dept 1989]; Hurley v State of New York, 200 AD2d 715, 715 [2d Dept 1994]).

We have considered plaintiff’s remaining contentions and find them unavailing.

Concur — Mazzarelli, J.P., Acosta, Moskowitz, Gische and Webber, JJ.