WILMINGTON TRUST NATIONAL ASSOCIATION AS TRUSTEE TO CITIBANK BNC 2007 2007 v. Board of Managers of Columbus Common Condominium, Defendant. (2023)

Order, Supreme Court, New York County (Arlene P. Bluth, J.), entered on or about September 3, 2021, which granted plaintiff's motion to renew defendant-appellant's motion for summary judgment dismissing the complaint and, upon renewal, denied defendant's motion, unanimously reversed, on the law, without costs, and plaintiff's motion to renew denied.  The Clerk is directed to enter judgment dismissing the complaint.

Plaintiff's motion to renew should have been denied as untimely (CPLR 2221[e][2]).  Absent circumstances set forth in CPLR 5015, which are inapplicable here, “a motion for leave to renew based upon an alleged change in the law must be made prior to the entry of a final judgment, or before the time to appeal has fully expired” (Matter of 160 E. 84th St. v. New York State Div. of Hous. & Community Renewal, 203 A.D.3d 501, 501, 161 N.Y.S.3d 776 [1st Dept. 2022];  see also Daniels v. Millar El. Indus., Inc., 44 A.D.3d 895, 895, 845 N.Y.S.2d 785 [2d Dept. 2007]).  Plaintiff's renewal motion was made after its time to appeal from the January 29, 2020 order granting defendant summary judgment dismissing the complaint had lapsed.  Plaintiff filed a notice of appeal from that order on February 27, 2020 and, although it had six months from that date, or until August 27, 2020, to perfect the appeal (see 22 NYCRR 1250.10[a]), its’ time to perfect was extended by this Court's March 17, 2020 order, issued in response to the COVID–19 pandemic, which temporarily suspended the perfection deadlines until May 8, 2020, when the March 17, 2020 order was rescinded.  Accordingly, plaintiff's time to perfect the appeal expired, at the latest, in November 2020, and its renewal motion, filed April 30, 2021, was untimely (see Matter of Huie [Furman], 20 N.Y.2d 568, 571, 285 N.Y.S.2d 610, 232 N.E.2d 642 [1967]).

Moreover, even if, pursuant to Governor Cuomo's executive orders, all relevant filing deadlines were tolled by 228 days (see Murphy v. Harris, 210 A.D.3d 410, 177 N.Y.S.3d 559 [1st Dept. 2022];  Matter of Roach v. Cornell Univ., 207 A.D.3d 931, 932, 172 N.Y.S.3d 215 [3d Dept. 2022];  Brash v. Richards, 195 A.D.3d 582, 583–585, 149 N.Y.S.3d 560 [2d Dept. 2021] [explaining that the executive orders added 228 days to filing deadlines]), plaintiff would have had until April 12, 2021 to perfect its appeal, and thus to file a motion to renew (160 E. 84th St., 203 A.D.3d at 501, 161 N.Y.S.3d 776).  Plaintiff did not file its motion to renew until April 30, 2021 – 18 days after the deadline.  Thus, even considering the executive orders, plaintiff's renewal motion was untimely.

Although defendant's argument as to the timeliness of plaintiff's motion is raised for the first time on appeal, we may address it, as it presents a question of law that can be resolved on the face of the existing record (see Vanship Holdings Ltd. v. Energy Infrastructure Acquisition Corp., 65 A.D.3d 405, 408, 884 N.Y.S.2d 24 [1st Dept. 2009];  Chateau D'If Corp. v. City of New York, 219 A.D.2d 205, 209, 641 N.Y.S.2d 252 [1st Dept. 1996], lv. denied 88 N.Y.2d 811, 649 N.Y.S.2d 379, 672 N.E.2d 605 [1996]).

In view of the foregoing, we need not reach defendant's remaining contentions.