Fleet National Bank, N. A. v. Wade

265 A.D.2d 524, 697 N.Y.S.2d 126, 1999 N.Y. App. Div. LEXIS 10824

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 25, 1999
• Status: Published

Opinion

—In an action to foreclose a mortgage, the defendants George Wade and Gloria Wade appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Floyd, J.), entered July 10, 1998, as granted the plaintiff’s motion for leave to renew its prior motion for summary judgment and, upon renewal, granted the motion for summary judgment.

Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.

The requirement that a motion for leave to renew be based upon newly-discovered facts is a flexible one and, under the circumstances of this case, the Supreme Court did not improvidently exercise its discretion in granting renewal (see, Gadson v New York City Hous. Auth., 263 AD2d 464; Petito v Verrazano Contr. Co., 246 AD2d 636).

The plaintiff established its entitlement to summary judgment by submitting proof of the mortgage, the note, and the appellants’ default in payment. The appellants failed to proffer any evidence sufficient to demonstrate the existence of a triable issue of fact and, consequently, the plaintiff was entitled to summary judgment (see, Maspeth Fed. Sav. & Loan Assn. v Ovadia Enters., 245 AD2d 349; Village Bank v Wild Oaks Holding, 196 AD2d 812).

The appellants’ remaining contentions are without merit. Mangano, P. J., O’Brien, Ritter and Schmidt, JJ., concur.