140 AD3d 850
N.Y. App. Div. 2nd
2016

TD Bank, N.A. v Chaim

Appellate Division, Second Department

June 8, 2016

2016 NY Slip Op 04401 | 140 AD3d 850

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 3, 2016

TD Bank, N.A., Respondent, v Yeshiva Chofetz Chaim, Appellant, et al., Defendants.

Phillip J. Murphy, PLLC, New City, NY, for appellant.

Corbally, Gartland and Rappleyea, LLP, Poughkeepsie, NY (William F. Bogle, Jr., of counsel), for respondent.

In an action to foreclose a mortgage, the defendant Yeshiva Chofetz Chaim appeals from an order of the Supreme Court, Rockland County (Kelly, J.), dated August 22, 2014, which denied its motion for leave to renew its cross motion, inter alia, to set aside the sale of the subject premises, which was denied in an order of the same court entered March 12, 2014.

Ordered that the order dated August 22, 2014, is affirmed, with costs.

Although the Supreme Court improperly treated the motion of the defendant Yeshiva Chofetz Chaim as a motion for leave to reargue rather than as a motion for leave to renew (see CPLR 2221 [d], [e]), the court providently exercised its discretion in denying the motion because it was based on evidence that, with due diligence, could have been discovered earlier (see Matter of Allstate Ins. Co. v Liberty Mut. Ins., 58 AD3d 727, 728 [2009]; Elder v Elder, 21 AD3d 1055, 1055 [2005]). Rivera, J.P., Dickerson, Maltese and Barros, JJ., concur.