Opinion
2014-11-19
HSBC BANK USA, NATIONAL ASSOCIATION, etc., respondent, v. Rudy LEGROS, appellant, et al., defendants.
Charles E. Holster III, Mineola, N.Y., for appellant. Hogan Lovells U.S. LLP, New York, N.Y. (David Dunn, Allison M. Funk, and Heather R. Gushue of counsel), for respondent.
Charles E. Holster III, Mineola, N.Y., for appellant. Hogan Lovells U.S. LLP, New York, N.Y. (David Dunn, Allison M. Funk, and Heather R. Gushue of counsel), for respondent.
, J.P., THOMAS A. DICKERSON, CHERYL E. CHAMBERS, and SANDRA L. SGROI, JJ.
In an action to foreclose a mortgage, the defendant Rudy Legros appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Adams, J.), entered January 28, 2013, as, upon reargument, adhered to a determination in an order of the same court dated July 31, 2012, denying his second motion, inter alia, to vacate the judgment of foreclosure and sale of the same court (LaMarca, J.) entered November 19, 2009.
ORDERED that the order dated January 28, 2013, is affirmed insofar as appealed from, with costs.
Contrary to the appellant's contention, the Supreme Court, upon reargument, properly adhered to its original determination denying his second motion, inter alia, to vacate a judgment of foreclosure and sale since he was precluded from making a second motion to vacate the judgment of foreclosure and sale on the same ground raised in his prior motion to vacate ( see Eastern Sav. Bank, FSB v. Brown, 112 A.D.3d 668, 670, 977 N.Y.S.2d 55; Matter of Ricardo H. v. Chante S., 111 A.D.3d 725, 725, 974 N.Y.S.2d 795; Viva Dev. Corp. v. United Humanitarian Relief Fund, 108 A.D.3d 619, 620, 968 N.Y.S.2d 379).
Motion by the appellant on an appeal from an order of the Supreme Court, Nassau County, entered January 28, 2013, inter alia, to strike stated portions of the respondent's brief on the ground that they refer to matter dehors the record. By decision and order on motion of this Court dated January 21, 2014, that branch of the motion which is to strike stated portions of the respondent's brief was held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof.
Upon the papers filed in support of the motion, the papers filed in opposition thereto, and upon the argument of the appeal, it is,
ORDERED that the branch of the motion which is to strike footnote 3 on page 10 of the respondent's brief is granted, and that portion of the respondent's brief is stricken and has not been considered in the determination of the appeal; and it is further,
ORDERED that the motion is otherwise denied.