Patrick Loreto, in the right of and on behalf of Encore Properties of Rochester, LLC, moves for an order pursuant to CPLR 2221(e) granting Plaintiffs leave to renew its motion pursuant to CPLR 3215 for a default judgment against Defendant, Encore Property Management of Western New York, LLC.

Plaintiffs previously moved for a default judgment against EPMWNY on August 23, 2012, and that motion was denied. In denying the motion, the Court stated that while EPMWNY was in default, Plaintiffs sought for the Court to make impermissible findings on matters disputed by Wells Fargo. It was determined that such a finding would prejudice Wells Fargo because the deed at issue is contested in this litigation and invalidating the deed would adversely impact Wells Fargo's interests.

CPLR Rule 2221 addresses motions to renew:

(e) A motion for leave to renew:

1. shall be identified specifically as such;

2. shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination; and

3. shall contain reasonable justification for the failure to present such facts on the prior motion.

See also, Giardina v. Parkview Court Homeowners' Association, Inc., 284 AD2d 953 (4th Dept. 2001). "Because 'renewal is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation'... a party seeking that relief must provide a reasonable justification for the earlier failure to present such facts." Cippitelli v. County of Schenectady, 307 AD2d 658 (3rd Dept. 2003), citing Carota v. Wu, 284 AD2d 614, 617 (3rd Dept. 2001).

On this motion to renew, Plaintiffs state that new information has arisen that was unavailable at the time the original motion was filed. In particular, Plaintiffs claim that since the date of the original decision, there are additional material facts that alleviate Wells Fargo's claim of prejudice. Plaintiffs state that because the Court, by Order dated August 3, 2015, determined that Wells Fargo was equitably subrogated to the lien position previously held by Intervest, the claim that Wells' lien position on the Intervest mortgages would be in jeopardy is no longer valid. [*2]Likewise, Plaintiffs note that the Court issued a subsequent Decision on September 27, 2016 establishing the amount by which Wells Fargo is to be equitably subrogated and granting a request to allow the property to be sold to satisfy the amount due. Plaintiffs contend that denying this motion will deny Plaintiffs their right to obtain title to the Stone Road property from the defaulting record owner and a monetary judgment against EPMWNY and all other Defendants for damages.

Wells Fargo opposes this motion, noting that even if the signatures were forged as alleged by Plaintiffs, Plaintiffs were nonetheless aware of, authorized, consented to, and/or ratified the transfer. The Court notes that these issues in particular are hotly contested in this matter and would need to be determined by a trier of fact. Wells Fargo also alleges that the parties to the Operating Agreement never complied with that agreement and, in any event, Plaintiffs' motion is premature because if the property sells for less than the amount due to Wells Fargo under the Intervest Mortgages, the motion for a default judgment is moot.

First, the Court notes that Plaintiffs do not offer new evidence that would change the previous determination on the default judgment application. The purported new evidence offered is that the Court granted Wells Fargo's motion for partial summary judgment on the equitable subrogation and assignment affirmative defenses. These affirmative defenses relate directly to Wells Fargo's ability to enforce the Intervest Mortgages. Other affirmative defenses raised by Wells Fargo remain and have not been determined and may become relevant after the sale of the property.

Moreover, a motion for a default judgment will be denied where a non-defaulting party would be prejudiced or adversely impacted by granting a default. See Merchants Ins. Co. of New Hampshire, Inc. v. Long Island Pet Cemetery, Inc., 206 AD2d 827, 828 (4th Dept. 1994). Granting the default sought by Plaintiffs would adjudicate Wells Fargo's outstanding defenses. Wells Fargo's outstanding affirmative defenses, if successful, could negate Plaintiffs' right to any potential surplus after a sale of the property. The Court additionally finds granting the default judgment improper because it would require the Court to make an affirmative finding that Plaintiffs have presented prima facie evidence of their ownership of the subject property.

The motion for a default judgment is denied without prejudice.

Signed at Rochester, New York this 12th day of January, 2017.