FLEET NATIONAL BANK v. WADE

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Supreme Court, Appellate Division, Second Department, New York.

FLEET NATIONAL BANK, N.A., Formerly Known as Natwest Bank, N.A., respondent, v. George WADE, et al., appellants, et al., defendants.

Decided: October 25, 1999

GUY JAMES MANGANO, P.J., CORNELIUS J. O'BRIEN, DAVID S. RITTER and ROBERT W. SCHMIDT, JJ. Guy Barbieri, Mineola, N.Y. (John Trubee Miller of counsel), for appellants.

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 A.D.2d 464, 691 N.Y.S.2d 914;  Petito v. Verrazano Contr. Co., 246 A.D.2d 636, 666 N.Y.S.2d 962).

 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 A.D.2d 349, 665 N.Y.S.2d 594;  Village Bank v. Wild Oaks Holding, 196 A.D.2d 812, 601 N.Y.S.2d 940).

The appellants' remaining contentions are without merit.

MEMORANDUM BY THE COURT.

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