GMAC Mtge., LLC v. Ortiz

GMAC Mtge., LLC v Ortiz (2019 NY Slip Op 08010)

GMAC Mtge., LLC v Ortiz

2019 NY Slip Op 08010

Decided on November 7, 2019

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 7, 2019
Richter, J.P., Webber, Gesmer, Oing, JJ.
10285N 17112/07

RAS Boriskin, LLC, Westbury (Joseph F. Battista of counsel), for appellant.

The Rosenfeld Law Office, Lawrence (Avi Rosenfeld of counsel), for respondent.

Order, Supreme Court, Bronx County (Howard H. Sherman, J.), entered on or about July 5, 2018, which, upon deeming plaintiff's motion pursuant to CPLR 2221 as a motion pursuant to CPLR 5015(a) to vacate the pre-note of issue dismissal order, denied the motion, unanimously affirmed, with costs.

Plaintiff waived its right to challenge the dismissal of this foreclosure action when it voluntarily discontinued the action in 2013 (see OneWest Bank, FSB v McKay, 172 AD3d 887, 888 [2d Dept 2019]). In any event, the motion, brought four years after the action was dismissed, was properly denied. Plaintiff failed to offer any reasonable excuse for its failure to appear at a 2013 scheduled court conference (see Diaz v Perlson, 168 AD3d 463 [1st Dept 2019]), and despite plaintiff's claims to the contrary, there is no evidence that there were ongoing settlement negotiations between it and defendant Ortiz.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 7, 2019

CLERK