Federal National Mortgage Association, Plantiff,

against

John Q. Quadrozzi, Jr., et al., Defendants.

25485/09

Plaintiff’s Attorney: Nicole Milone, Esq., Berkman, Henoch, Peterson, Peddy & Fenchel, P.C., 100 Garden City Plaza, Garden City, NY 11530

Defendant’s Attorney: Joseph Paykin, Esq., Hinman, Howard & Kattell, LLP, 185 Madison Avenue, 7th Fl., New York, NY 10016

David I. Schmidt, J.

Plaintiff Federal National Mortgage Association moves for leave, pursuant to CPLR 2221(e), to renew its motion for summary judgment, and upon renewal, for an order: (i) granting plaintiff summary judgment on the complaint; (ii) striking the fourth affirmative defense of defendant John Q. Quadrozzi, Jr.; (iii) appointing a referee to compute the amount due and owing to plaintiff; and (iv) awarding plaintiff the costs of this motion.

I.Background and Procedural History

Plaintiff commenced this action by filing a summons and complaint on October 8, 2009. The complaint alleges that defendant had defaulted on a note and mortgage that he had executed in favor of plaintiff’s assignor and that defendant now owes plaintiff $490,104.15, plus interest, late charges and advances. On December 14, 2009, defendant served an answer, interposing five affirmative defenses.

On September 26, 2012, plaintiff moved for summary judgment on the complaint and other relief (the Motion), based, in part, on its assertion that it had sent defendant a letter dated January 5, 2009, by first class mail, notifying him of his default, the actions necessary to cure the default, and that failure to do so would within 30 days would result in acceleration of the mortgaged debt.

By decision and order dated January 11, 2013, this court granted the Motion only to the extent that it, inter alia, struck defendant’s first, second, third, and fifth affirmative defenses.^[FN1] See affirmation of Abigail Fox-Willman, dated April 30, 2013 (Fox-Willman aff.), Ex. A . With [*2]respect to the other relief plaintiff sought, i.e., summary judgment on the complaint, the court directed the parties to appear for a hearing before a Special Referee to determine the issue of service of the 30-day notice of default/acceleration that plaintiff claimed it sent defendant.

In concluding that it could not resolve the issue of service on the papers submitted, the court noted that:

Plaintiff argues that the requisite 30-day notice of default was mailed to Quadrozzi on or about January 5, 2009 in accordance with paragraph “15” and “22” of the subject mortgage which requires said notice to be sent via first class mail. Although proof of said mailing is not available, plaintiff relies upon the affidavit of Millicent Stanley, the Vice President of its servicing agent, Central Mortgage Company, in which she avers that it is plaintiff’s “normal practice to mail all 30 day notices of default via first class mail to the mortgagor’s mailing address” and that, “[o]n or about January 5, 2009 [she] served a 30 day notice of default” in that manner. For his part, Quadrozzi denies receipt of the notice and questions how Millicent Stanley can recall mailing the notice almost four years later, there apparently being no documentary evidence offered to support her contentions.

Id.^[FN2]

On April 18, 2013, the special hearing was held and the dispute of facts centered on whether plaintiff had mailed the thirty day notice of default by which defendant would have been advised of the amount required for an adequate tender. At its conclusion, the Special Referee issued an order determining that, contrary to what was stated in the affidavit of Millicent Stanley, plaintiff’s servicer, Central Mortgage Company (Central), uses a third party mailing service, Arkansas MailingServices Corp. (Arkansas Mailers), to send its thirty-day notices of default, and because no representative of said third party was present at the special hearing to corroborate its mailing practices, the thirty-day notice of default was not mailed via first class mail to defendant. See Fox-Willman aff., Ex. C.

II.Discussion

In support of the instant application for renewal of the Motion, plaintiff seeks to submit the affidavit of Doug Jones, dated April 25, 2013 (the Jones Affidavit) the owner of Arkansas Mailing, the third party mailing service vendor of plaintiff. According to plaintiff, the Jones Affidavit establishes that it is the normal business practice of Arkansas Mailing to mail all of Central’s thirty-day notices of default via both first class and certified mail on the same day. The Jones Affidavit further states that a thirty-day notice of default was mailed to defendant on January 9, 2009 via both first class and certified mail. See Fox-Willman aff., Ex. D.

In opposition, defendant essentially argues that the motion should be denied because plaintiff has failed to: (i) proffer new evidence which was unknown at the time of the Motion; and (ii) present a reasonable justification for its failure to present such evidence as required under CPLR 2221(e).

In reply, plaintiff asserts that defendant’s blanket assertion that a motion to renew may [*3]only be based on facts unknown to plaintiff at the time of its summary judgment motion is incorrect. Plaintiffs assert that, in the interest of justice, the court may grant renewal even upon facts known to the movant at the time of the original motion.

Plaintiff further argues that it had a reasonable justification for not submitting the Jones Affidavit. In this regard, plaintiff asserts that, at the time of its Motion, it reasonably believed that supporting its motion with an affidavit of an assistant vice president to plaintiff’s servicer who attested to personal knowledge of the typical mailing practices and procedures, in addition to annexing a copy of the 30-day letter sent to defendant, would be sufficient to establish and support plaintiff’s mailing of the 30-day letter to defendant. Plaintiff’s position is that, although the facts contained in the Jones Affidavit were known to it at the time of the Motion, it did not foresee any need for the Jones Affidavit because, only after the Motion was submitted, did it become clear that the court required additional support of plaintiff’s mailing practices.

As an initial matter, and contrary to defendant’s contention otherwise, there is no requirement in CPLR 2221(e)(2) that the facts on which the motion to renew is based be newly discovered. See Patrick M. Connors, Practice Commentaries, McKinney’s Consolidated. Laws of New York, Book 7B, CPLR C2221:9 at 290. Rather, as the Second Department has consistently ruled, “a motion for leave to renew must be based upon new facts not offered on the prior motion that would change the prior determination, and must set forth a reasonable justification for the failure to present such facts on the prior motion.” Worrell v Parkway Estates, LLC, 43 AD3d 436, 437 (2d Dept 2007) (emphasis added). Nevertheless, a motion “to renew is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation.” Renna v Gullo, 19 AD3d 472, 473 (2d Dept 2005), quoting Rubinstein v Goldman, 225 AD2d 328, 329 (2d Dept 1996). Consequently, the Supreme Court lacks discretion to grant renewal where the moving party omits a reasonable justification for failing to present the new facts on the original motion. See Worrell v Parkway Estates, LLC, 43 AD3d at 437.

Here, although plaintiff claims it has offered a reasonable justification for its failure to present the facts contained in the Jones affidavit in support of its Motion (which it concedes it was aware of at the time it made its Motion), there is no explanation as to why someone with knowledge of Arkansas Mailers’ regular business practice did not appear at the special hearing — a proceeding that took place approximately four months after the court’s January 11, 2013 decision and order — to corroborate its mailing practices. Furthermore, given plaintiff’s admission that it was in possession of the facts contained in the Jones Affidavit at the time it made its Motion, it does not appear that plaintiff “exercised due diligence in making [its] factual presentation” (id.) by relying, instead, on the affidavit of Millicent Stanley.

Thus, absent any explanation (and there is none) of why plaintiff did not offer the information contained in the Jones Affidavit in further support of its Motion, or at the very latest, at the traverse hearing — the court will not disturb its January 13, 2013 decision and order or the determination made by the Special Referee.

Accordingly, it is

ORDERED that plaintiff Federal National Mortgage Association’s motion for leave to renew, is denied.

Dated: July 30, 2013 [*4]

ENTER:

_______________________

J.S.C.

Footnote 1: The court also granted those branches of the Motion seeking an order deeming all non-appearing defendants in default and discontinuing the action against certain other defendants.

Footnote 2: The court concluded that the sufficiency of defendant’s fourth affirmative defense, i.e., that he had properly tendered the amount due, was bound up in the question of whether there was valid service of the notice of default and, as such, would also be resolved by the special hearing.