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WASHINGTON MUTUAL BANK, FA, respondent, v. Hershey ITZKOWITZ, et al., appellants, et al., defendants.
In an action to foreclose a mortgage, the defendants Hershey Itzkowitz and Pearl Itzkowitz, appeal from (1) an order of the Supreme Court, Rockland County (Weiner, J.), dated May 21, 2006, which denied as untimely their motion for leave to renew the plaintiff's motion for summary judgment and to vacate a judgment of foreclosure entered April 8, 2002, and (2) an order of the same court dated June 29, 2006, which denied their motion to preliminarily enjoin the plaintiff from selling the premises at issue.
ORDERED that the orders are affirmed, with one bill of costs.
Pursuant to CPLR 2221(e), a motion for leave to renew must be “based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination” and the motion papers must contain a “reasonable justification for the failure to present such facts on the prior motion.” “After entry of a final judgment, a motion for leave to renew pursuant to CPLR 2221(e)(2) based upon ‘a change in the law that would change the prior determination’ must be made, absent circumstances set forth in CPLR 5015, before the time to appeal the final judgment has expired” (Eagle Ins. Co. v. Persaud, 1 A.D.3d 356, 357, 766 N.Y.S.2d 571, quoting CPLR 2221[e][2]; see Glicksman v. Board of Education/Central School Bd. of Comsewogue Union Free School District, 278 A.D.2d 364, 717 N.Y.S.2d 373). The appellants do not allege any of the circumstances set forth in CPLR 5015.
The final judgment in the instant case was entered on April 8, 2002. The appellants never appealed the judgment, and did not make their motion for leave to renew until almost three years later. Therefore, the Supreme Court properly denied the motion for leave to renew as untimely.
In view of the proper denial of the appellants' motion for leave to renew, and in view of the fact that a final judgment of foreclosure was entered in 2002, the Supreme Court also properly denied the appellants' motion for a preliminary injunction.
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Decided: January 29, 2008
Court: Supreme Court, Appellate Division, Second Department, New York.
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