193 A.D.3d 1036
Supreme Court, Appellate Division, Second Department, New York.
MEW EQUITY, LLC, et al., appellants,
v.
SUTTON LAND SERVICES, LLC, doing business as Sutton Land Title, et al., respondents, et al., defendants.
2017–10717
|
(Index No. 25882/10)
|
Argued—February 9, 2021
|
April 28, 2021
Synopsis
Background: Limited liability company (LLC) and its members, which had made a loan to two individuals, which was collateralized by a mortgage spread over several properties purportedly owned by entities owned or controlled by individuals, brought action against the individuals and the entities, the transferee of a property purportedly owned by one of the entities, the transferee’s mortgagee, and title companies and their agents who had been involved in the loan transaction, alleging that individuals fraudulently induced the loan by mortgaging the transferred property and that title companies and agents participated in the fraud, and seeking declarations that deed conveying transferred property was invalid and that LLC’s mortgage had priority over the mortgage of transferee’s mortgagee. The Supreme Court, Kings County, Jack M. Battaglia, J., denied title companies’ and agents’ motion for summary judgment or to disqualify plaintiffs’ counsel, denied transferee’s motion for dismissal or summary judgment and sanctions, and denied the motion of transferee’s mortgagee for dismissal or summary judgment. Defendants appealed. The Supreme Court, Appellate Division, affirmed as modified and remitted. Upon remittitur the Supreme Court, Kings County, Ellen M. Spodek, J., entered judgment dismissing complaint as asserted against entities and title company, and denied LLC’s and member’s motions to vacate judgment. LLC and its members appealed.
 
[Holding:] The Supreme Court, Appellate Division, held that LLC and its members failed to meet burden of showing newly discovered evidence that could not have been discovered earlier through exercise of due diligence.
 
Affirmed.
 
Procedural Posture(s): On Appeal; Motion for Summary Judgment; Motion to Set Aside or Vacate Summary Judgment.

West Headnotes (3)

[1]
	JudgmentNewly discovered evidence
	
	Limited liability company (LLC) and its members failed to meet burden of showing newly discovered evidence that could not have been discovered earlier through exercise of due diligence in its motion to vacate trial court’s judgment dismissing LLC’s and its member’s action against entities owned by individuals which LLC had made a loan to; LLC and its members failed to exercise due diligence. N.Y. CPLR §§ 2221(e), 5015(a).

[2]
	JudgmentNewly discovered evidence
	
	On motion to vacate judgment based upon newly discovered evidence, movant must establish that purportedly newly discovered evidence could not have been discovered earlier through exercise of due diligence. N.Y. CPLR § 5015(a).

[3]
	Appeal and ErrorOpening or vacating judgment or order
MotionsRenewal
	
	On postappeal motion for leave to renew, movant bears heavy burden of showing due diligence in presenting alleged new evidence to imbue appellate decision with degree of certainty. N.Y. CPLR § 5015(a).

Attorneys and Law Firms
*658 Lynn, Gartner, Dunne & Covello, LLP, Mineola, N.Y. (Robert P. Lynn, Joseph Covello, Katharine Santos, and Perry Balagur of counsel), for appellants.
Jonathan A. Stein, P.C., Cedarhurst, NY, for respondents Sutton Land Services, LLC, doing business as Sutton Land Title, Sutton Alliance, LLC, doing business as Sutton Land Title, Raizy Moskovits, and Martin Silverstein.
Fidelity National Law Group, New York, N.Y. (Donald G. Davis of counsel), for respondent Marcy Tower, LLC.
Butler, Fitzgerald, Fiveson & McCarthy, New York, N.Y. (David K. Fiveson and Claudia G. Jaffe of counsel), for respondent JP Morgan Chase Bank National Association.
MARK C. DILLON, J.P., SYLVIA O. HINDS–RADIX, HECTOR D. LASALLE, BETSY BARROS, JJ.

DECISION & ORDER
In an action, inter alia, to recover damages for breach of contract and for declaratory relief, the plaintiffs appeal from an order of the Supreme Court, Kings County (Ellen M. Spodek, J.), dated August 15, 2017. The order denied the plaintiffs’ separate motions for leave to renew their opposition to those branches of the separate motions of the defendants Sutton Land Services, LLC, doing business as Sutton Land Title, Sutton Alliance, LLC, doing business as Sutton Land Title, Raizy Moskovits, and Martin Silverstein, the defendant Marcy Tower, LLC, and the defendant JP Morgan Chase Bank National Association, which were for summary judgment dismissing the complaint insofar as asserted against each of them and pursuant to CPLR 5015(a) to vacate a judgment of the same court entered February 7, 2017.
 
ORDERED that the order is affirmed, with one bill of costs payable by the plaintiffs to the respondents appearing separately and filing separate briefs.
 
The factual background of this dispute is set forth in our prior decision and order in this matter (see Mew Equity, LLC v. Sutton Land Servs., LLC, 144 A.D.3d 874, 42 N.Y.S.3d 175). In that decision and order, this Court reversed an order of the Supreme Court, Kings County, dated November 1, 2013, denying, on procedural grounds, the separate motions of the defendants Sutton Land Services, LLC, doing business as Sutton Land Title, Sutton Alliance, LLC, doing business as Sutton Land Title, Raizy Moskovits, and Martin Silverstein (hereinafter collectively Sutton), the defendant Marcy Tower, LLC (hereinafter Marcy Tower), and the defendant JP Morgan Chase Bank National Association, as successor in interest to Washington Mutual Bank (hereinafter Chase), which were for summary judgment dismissing the complaint insofar as asserted against each of them, granted those branches of their respective motions on the merits, and remitted the matter to the Supreme Court, Kings County, for the entry of a judgment, and appropriate declarations (see id. at 875, 42 N.Y.S.3d 175). Upon remittitur, the Supreme Court entered *659 a judgment on February 7, 2017, inter alia, dismissing the complaint insofar as asserted against Sutton, Marcy Tower, and Chase.
 
[1]Thereafter, in separate motions, the plaintiffs sought leave pursuant to CPLR 2221(e) to renew their opposition to those branches of Sutton’s, Marcy Tower’s, and Chase’s motions which were for summary judgment dismissing the complaint insofar as asserted against each of them and pursuant to CPLR 5015(a) to vacate the judgment entered February 7, 2017. The Supreme Court denied the plaintiffs’ motions, and the plaintiffs appeal.
 
[2] [3]On a motion to vacate a judgment based upon newly discovered evidence, the movant must establish that the purportedly newly discovered evidence could not have been discovered earlier through the exercise of due diligence (see Deutsche Bank Nat. Trust Co. v Morris, 160 A.D.3d 613, 70 N.Y.S.3d 856). Further, on a postappeal motion for leave to renew, the movant bears a heavy burden of showing due diligence in presenting the alleged new evidence to imbue the appellate decision with a degree of certainty (see Priant v. New York City Tr. Auth., 142 A.D.3d 491, 36 N.Y.S.3d 201; Derby v. Bitan, 112 A.D.3d 881, 977 N.Y.S.2d 405).
 
Here, the plaintiffs failed to meet that burden. Rather, it is apparent from the record that they failed to exercise due diligence. Accordingly, the Supreme Court properly denied the plaintiffs’ separate motions.
 
The parties’ remaining contentions need not be reached in light of our determination.
 
DILLON, J.P., HINDS–RADIX, LASALLE and BARROS, JJ., concur.
All Citations
193 A.D.3d 1036, 147 N.Y.S.3d 657, 2021 N.Y. Slip Op. 02514
End of Document
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