Citimortgage, Inc. v. Smith
Docket 2024-01640
Court of record · Indexed in NoticeRegistry archive · AI-enriched for research
- Filed
- Jurisdiction
- New York
- Court
- Appellate Division of the Supreme Court of the State of New York
- Type
- Opinion
- Case type
- Civil
- Disposition
- Affirmed
- Citation
- 2026 NY Slip Op 02626
- Docket
- 2024-01640
Appeal from a Supreme Court order denying the defendant's motion for leave to renew opposition to confirmation of a referee's report and to vacate a foreclosure judgment
Summary
The Appellate Division affirmed a Supreme Court order denying Brooklyn 7 Realty, Inc.'s late renewal motion to reopen and vacate a 2019 foreclosure judgment. Brooklyn 7 sought leave in 2023 to renew its opposition to confirmation of a referee's report, to vacate the foreclosure and dismiss the complaint as time-barred, or to amend its answer to assert a statute-of-limitations defense. The court held the renewal motion was untimely because it was made long after the judgment was entered and after the deadline to appeal had passed, so the lower court properly denied the motion without reaching the parties' other arguments.
Issues Decided
- Whether a post-judgment motion for leave to renew based on allegedly changed law and to vacate a foreclosure judgment was timely under CPLR rules
- Whether the Supreme Court properly denied relief where the motion was made after the time to appeal expired
Court's Reasoning
Under CPLR 2221(e)(2) a motion for leave to renew after entry of final judgment based on a change in law must be made before the time to appeal the final judgment expires, absent CPLR 5015 circumstances. The foreclosure judgment was served with notice of entry in April 2019, and the defendant waited until 2023 to move for renewal, well beyond the appeal period. Because the motion was untimely, the court correctly denied it and did not need to decide the remaining arguments.
Authorities Cited
- CPLR 2221(e)(2)
- CPLR 5513(a), (d)
- Matter of Eagle Ins. Co. v Persaud1 AD3d 356
- Wilmington Sav. Fund Socy., FSB v Souffrant237 AD3d 1006
Parties
- Respondent
- Citimortgage, Inc.
- Appellant
- Brooklyn 7 Realty, Inc.
- Defendant
- Ian Smith
- Judge
- Betsy Barros, J.P.
- Judge
- Linda Christopher
- Judge
- Barry E. Warhit
- Judge
- Helen Voutsinas
Key Dates
- Note execution
- 2005-07-01
- Title conveyed to Brooklyn 7 Realty
- 2013-01-01
- This action commenced
- 2016-04-01
- Order and judgment of foreclosure and sale
- 2019-03-04
- Order appealed from (denying renewal motion)
- 2023-08-18
- Appellate decision
- 2026-04-29
What You Should Do Next
- 1
Consult counsel about appeal options
If the defendant wishes to pursue further review, speak with appellate counsel promptly about seeking leave to appeal to the Court of Appeals and the prospects given the timeliness ruling.
- 2
Confirm sale and title status
Determine whether the foreclosure sale proceeded or is pending and, if the sale occurred, assess its finality and any steps to protect any interest in the property.
- 3
Explore relief under CPLR 5015
If there are grounds such as newly discovered evidence, fraud, or lack of jurisdiction, consider whether a motion under CPLR 5015 might provide a basis to reopen the judgment.
Frequently Asked Questions
- What did the court decide?
- The court affirmed the denial of Brooklyn 7 Realty's late motion to renew and vacate a 2019 foreclosure judgment because the motion was made after the appeal deadline had passed.
- Who is affected by this decision?
- Brooklyn 7 Realty, the foreclosure plaintiff Citimortgage, and any prospective buyers of the foreclosed property are affected because the foreclosure judgment remains in effect.
- Why was Brooklyn 7's motion denied?
- Because renewal motions based on changed law must be brought before the time to appeal the judgment expires, and Brooklyn 7 moved years after the judgment was entered and after the appeal period had ended.
- Can Brooklyn 7 appeal this Appellate Division decision?
- Possibly, but further appeal options are limited; they could seek leave to appeal to the Court of Appeals, though success is uncertain given the procedural-timeliness basis for the decision.
The above suggestions and answers are AI-generated for informational purposes only. They may contain errors. NoticeRegistry assumes no responsibility for their accuracy. Consult a qualified attorney before relying on them.
Full Filing Text
Citimortgage, Inc. v Smith - 2026 NY Slip Op 02626 Citimortgage, Inc. v Smith 2026 NY Slip Op 02626 April 29, 2026 Appellate Division, Second Department Citimortgage, Inc., respondent, v Ian Smith, et al., defendants, Brooklyn 7 Realty, Inc., appellant. Supreme Court of the State of New York, Appellate Division, Second Judicial Department Decided on April 29, 2026 2024-01640, (Index No. 506946/16) Betsy Barros, J.P. Linda Christopher Barry E. Warhit Helen Voutsinas, JJ. The Rosenfeld Law Office, PLLC, Lawrence, NY (Avinoam Rosenfeld of counsel), for appellant. Knuckles & Manfro LLP, Tarrytown, NY (Ali Degan of counsel), for respondent. DECISION & ORDER In an action to foreclose a mortgage, the defendant Brooklyn 7 Realty, Inc., appeals from an order of the Supreme Court, Kings County (Larry D. Martin, J.), dated August 18, 2023. The order, insofar as appealed from, denied those branches of that defendant's motion which were, in effect, for leave to renew its opposition to the plaintiff's prior motion to confirm a referee's report and for a judgment of foreclosure and sale, which had been granted in an order and judgment of foreclosure and sale (one paper) of the same court (Noach Dear, J.) dated March 4, 2019, and, upon renewal, to vacate the order and judgment of foreclosure and sale and to dismiss the complaint insofar as asserted against it as time-barred or, in the alternative, for leave to amend its answer to assert a statute of limitations defense. ORDERED that the order is affirmed insofar as appealed from, with costs. In July 2005, the defendant Ian Smith (hereinafter the borrower) executed a note in the principal sum of $491,417, which was secured by a mortgage on certain real property located in Brooklyn. In 2008, and again in 2010, the plaintiff commenced two prior actions against the borrower to foreclose the subject mortgage. The 2008 action was abandoned and the 2010 action was voluntarily discontinued by the parties. In 2013, title to the subject property was conveyed to the defendant Brooklyn 7 Realty, Inc. (hereinafter the defendant). In April 2016, the plaintiff commenced this action against the borrower and the defendant, among others, to foreclose the mortgage. The defendant interposed an answer with counterclaims and asserted several affirmative defenses. Thereafter, the Supreme Court granted the plaintiff's motion for summary judgment on the complaint insofar as asserted against the defendant and for an order of reference. In an order and judgment of foreclosure and sale dated March 4, 2019, the court granted the plaintiff's motion to confirm the referee's report and for a judgment of foreclosure and sale, confirmed the referee's report, and directed the sale of the property. The defendant appealed from the order and judgment of foreclosure and sale, but its appeal was deemed dismissed based on the defendant's failure to timely perfect ( see 22 NYCRR 1250.10[a]). After the sale of the property was noticed for March 2023, the defendant moved, in effect, for leave to renew its opposition to the plaintiff's prior motion to confirm the referee's report and for a judgment of foreclosure and sale and, upon renewal, to vacate the order and judgment of foreclosure and sale and to dismiss the complaint insofar as asserted against it as time-barred or, in the alternative, for leave to amend its answer to assert a statute of limitations defense. The plaintiff opposed. In an order dated August 18, 2023, the Supreme Court denied the defendant's motion as untimely. The defendant appeals. "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" ( Matter of Eagle Ins. Co. v Persaud , 1 AD3d 356, 357, quoting CPLR 2221[e][2]; see Wilmington Sav. Fund Socy., FSB v Souffrant , 237 AD3d 1006, 1008; U.S. Bank N.A. v Tong , 230 AD3d 716, 717; Opalinski v City of New York , 205 AD3d 917, 919; Dinallo v DAL Elec. , 60 AD3d 620, 621). Here, the parties do not dispute that the order and judgment of foreclosure and sale was served upon the defendant with notice of entry in April 2019. The defendant moved, in effect, for leave to renew in 2023, "long after [its] time to appeal from the order and judgment of foreclosure and sale expired" ( Wilmington Sav. Fund Socy., FSB v Souffrant , 237 AD3d at 1008, citing CPLR 5513[a], [d]). Therefore, the Supreme Court properly denied the defendant's motion as untimely ( see id. ; see also U.S. Bank N.A. v Tong , 230 AD3d at 717). In light of the foregoing, we need not reach the parties' remaining contentions. BARROS, J.P., CHRISTOPHER, WARHIT and VOUTSINAS, JJ., concur. ENTER: Darrell M. Joseph