Respondents Barbara Mesibov ("Barbara") and William Mesibov ("William") (collectively "Mesibov") move to renew from this Court's order of July 10. 2006 and, upon renewal grant a judgment dismissing the petition. Petitioners, Howard Kantor, M.D. and James Alexander, M.D., as partners of Columbia Realty Associates ("Columbia") cross-move to renew and, upon renewal, grant a judgment directing the sale of William's interest in premises 132 Roger Canoe Hollow Road, Mill Neck, New York ("the Property").

1.Factual

Columbia obtained a judgment against William in the principal amount of $635,312.57. Most, if not all, of this judgment remains unsatisfied.

In an effort to obtain satisfaction of the judgment, Columbia brought on a special proceeding seeking a judgment pursuant to CPLR 5206(e) directing a sale of the Property.

The Property consists of a one family home that is owned by Barbara and William as tenants by the entirety. Columbia asserts that the fair market value of the property is approximately $3,600,000. The property is presently encumbered by mortgages in the totaling $2,754,976,97.

Columbia asserts that Barbara and William have approximately $845,000 in equity in the Property. Columbia alleges William's equity in the Property is approximately $422,500. If the Court were to direct a sale of The property, William's interest could be sold for amount equaling his equity in the Property. After paying William's homestead exemption of $50,000 and the sheriff's fees involved in the sale, the balance could be used to partially satisfy Columbia's judgment.

Barbara asserts that if William's interest in The Property is sold at a judicial sale, Washington Mutual, which holds the principal mortgage on the Property, could declare the entire mortgage balance due and payable. This could result in her losing her interest in the Property.

2.Prior Order

By order of this Court dated July 10, 2006, this Court granted Barbara's application for leave to intervene in these proceedings. The Court held that a final determination of Columbia's application for a judgment directing the sale of the Property would be held in abeyance pending a hearing to determine the market value of William's interest in the Property at a judicial sale.

A.Renewal

A motion to renew shall be designated as such, shall be based upon new facts not presented to the court in connection with the prior motion that would change the court's prior determination or shall demonstrate that there has been a change in the law which would change the prior decision and shall provide a reasonable justification for the failure to present the new facts on the prior motion. CPLR 2221(e).

The court must find that the party presenting the new facts has a reasonable excuse for failing to present those facts on the prior motion. Kaufman v. Kunis, 14 AD3d 542 (2nd Dept. 2005); and Yarde v. New York City Transit Auth., 4 AD3d 352 (2nd Dept. 2004). A party [*2]establishes a reasonable excuse when the facts existed but were not known to the party when the prior motion was made. Johnson v. Marquez, 2 AD3d 786 (2nd Dept. 2003); and Riccio v. Deperalta, 274 AD2d 384 (2nd Dept.) app. dism., 95 NY2d 957 (2000).

B.Respondents' Motion to Renew

Mesibov asserts that the Court should either dismiss the petition or restrain Columbia from executing until such time as the Property becomes vacant, is sold or William survives Barbara.

The "new evidence" upon which Mesibov relies is a mortgage in the principal sum of $2,375,000 held by Washington Mutual. The mortgage contains a provision that gives Washington Mutual the right to declare the entire unpaid principal balance due and payable if any part of the Property or any right Barbara or William have in the Property is sold or transferred without Washington Mutual's prior written consent.

Respondents have not provided the Court with a copy of either the mortgage note or the mortgage.

Barbara asserts the sale of William's interest might very well result in Washington Mutual demanding full payment. This might result in her interest in the Property being foreclosed.

She also asserts that the sale of William's interest would render her occupancy of the property untenable. She asserts she would need the consent of the purchaser of William's interest to make any repairs to the property. Although she would be living in the house, her continued occupancy would be subject to the whims of a person with no right of occupancy and no interest in the Property other than to have the Property sold.

The Washington Mutual mortgage is not "new evidence" for the purposes of this renewal motion. The mortgage was a lien on the Property when this special proceeding was originally heard by the Court. Barbara and William are both mortgagors. The terms of the mortgage and affect the sale of Willliam's interest in the Property would have on the mortgage could and should have been presented to the Court when this matter was first heard.

A motion to renew is not a second chance given to a party who failed to exercise due diligence when making their initial factual presentation. Renna v. Gullo, 19 AD3d 472 (2nd Dept. 2005); and O'Dell v. Caswell, 12 AD3d 492 (2nd Dept. 2004). This is precisely what Mesibov are doing by raising the issues involving the Washington Mutual mortgage. They offer no reason why this argument was not made when the matter was first submitted to the Court. Therefore, renewal on this basis must be denied.

To the extent that Barbara's motion is premised upon the Court's alleged misapplication of the law, such an application is one to reargue, not one to renew. See, CPLR 2221(d). See also, Rivera v. Toruno, 19 AD3d 473 (2nd Dept. 2005).

A motion to reargue must be made "...within the time allowed for taking an appeal from the determination in question. (see, Matter of Huie [Furman], 20 NY2d 568, 572)." Porowski v. Mason, 238 AD2d 559 (2nd Dept. 1997). See also, Fitzpatrick v. Cook, 58 AD2d 642 (2nd Dept. 1977). A notice of appeal must be filed within 30 days of the service of the order with notice of entry. CPLR 5513(a).

The order from which Mesibov seeks reconsideration was entered on July 18, 2006. The attorneys for the parties appeared for the conference set by that order.

Respondents do not, however, indicate when or if the order was ever served with notice of entry. Therefore, the Court cannot determine whether Mesibov's time to appeal has expired or [*3]whether, if treated as a motion to reargue, the motion is timely.

To the extent that the Court were to treat Mesibov's motion as one to reargue, such motion would be denied inasmuch as Respondents have failed to demonstrate that the Court misapprehended the facts or misapplied relevant law. See, Carillo v. PM Realty Grp., 16 AD3d 611 (2nd Dept. 2005); Amato v. Lord & Taylor, Inc., 10 AD3d 374 (2nd Dept. 2004); and Hoey-Kennedy v. Kennedy, 294 AD2d 573 (2nd Dept. 2003).

Even so, the cases upon which Mesibov rely for the first time, on this motion, Seyfarth v. Bi-County Electric Corp., 73 Misc 2d 363 (Sup.Ct. Nassau Co., 1973); Hammond v. Econo-Car of the North Shore, Inc., 71 Misc 2d 546 (Sup.Ct., Nassau Co., 1972); and Gilchrist v. Commercial Credit Corp., 66 Misc 2d 791 (Sup.Ct., Nassau Co. 1971), are factually distinguishable. In those cases, the judgment creditor was seeking to compel the sale of an estranged husband's interest in real property occupied by the wife and young children. In each of these cases, the court stressed the fact that the wife had limited resources and had received no benefit from the transaction which resulted in the judgment. See also, Matter of Sand, 213 NYLJ 58, p. 29 col. 4 (Sup. Ct. Nassau Co. 3/28/95), where sale of the husband's interest was denied because the judgment creditor made no other effort to enforce its judgment.

None of these factors are present in this case. The judgment creditors have made other efforts to obtain enforcement of the judgment. However, the amount Columbia is receiving monthly from an income execution and property attachment is inadequate to cover the interest accruing on the judgment.

In addition, William lives at the Property with Barbara. Mesibov have sufficient assets and income to pay real property taxes on the Property which are in excess of $38,000 per year and mortgage payments in excess of $150,000 per year. The Property is a large single family home located on 6.7 acres of property. As of January 1, 2007, the fair market value of the Property as assessed by the Nassau County Assessor is over $3.9 million. If the Property were sold, there is little likelihood that Mesibov would be rendered homeless.

The judgment which Petitioners seek to enforce arises out of obligations William owes to his former business partners. To the extent that William has failed to pay those obligations, both he and Barbara have benefitted. Petitioners further allege Respondents have been engaging in activities designed to frustrate the enforcement of the judgment. Thus, this is not a situation where judgment creditors are using the threat of a sale as a means to compel the wife to pay a debt of her estranged husband. See, Seyfarth v. Bi-County Electric Corp., supra; and Hammond v. Econo-Car of the North Shore, Inc., supra.

Therefore, Mesibov's motion to renew must be denied.

C.Petitioners' Motion to Renew

Petitioners' motion to renew must be denied because they have failed to present any new facts or a change in the law that would change the prior determination. CPLR 2221(e)(2).

Columbia's motion is actually one to reargue. Columbia asserts that the Court misapprehended the law and/or the facts by failing to order an immediate sale of William's interest in the Property. CPLR 2221(d)(2).

To the extent the motion is treated as a motion to reargue, the motion would be denied.

Columbia fails to distinguish between Mesibov's equity in the Property and the fair market value of William's interest in the Property at a judicial sale.

William and Barbara own the property as tenants by the entirety. Therefore, each "...is seized of the whole and not of any undivided portion of the estate." See, Matter or Reister v. [*4]Town Board of the Town of Fleming, 18 NY2d 92 (1966).

Mesibov's equity in the property is a simple arithmetic calculation. It is figured by deducting the outstanding liens against the Property from its fair market value.

However, a determination of the value of William's interest in the Property at a judicially directed sale must take into account several factors not related to a simple calculation of Mesibov's equity; to wit: Barbara's right of occupancy and survivorship (See, First Federal Savings & Loan Assoc. of New York v. Lewis, 14 AD2d 150 [1st Dept. 1961]), the inability of the purchaser of William's interest to obtain a partition of the property (See, Hammond v. Econo-Car of the North Shore, Inc., supra) and the purchaser's obligation to pay costs and expenses relating to the property without having any rights of occupancy. ( See, BNY Financial Corp. v. Moran, 154 Misc 2d 435 [Sup.Ct. NY Co. 1992]). Additionally, the purchaser of William's interest would be taking his/her interest subject to all existing liens, which are rather substantial.

William is presently 68 years old. He has a life expectancy of 13.9 years. See, Life Expectancy Tables for Males, United States, 1997, 1B NY PJI 3d, App. A. Barbara is presently 57 years old. She has a life expectancy of 25.6 years. Id. If Barbara were to outlive William, which statistically is a strong possibility, the interest of the purchaser of William's interest in the Property would be extinguished. See, V.R.W., Inc. v. Klein, 68 NY2d 560 (1986); and 24 NY Jur 2d Cotenancy and Partition §97. The purchaser of William's interest would, be in effect, betting that a 68 year old male will outlive a 57 year old female.

All of these factors lead this Court to believe that William's interest in the property at a sheriff's sale may be worth significantly less than his equity in the Property. Before Columbia received any money from the sale of the property, William would be entitled to receive his homestead exemption of $50,000 (CPLR 5206[e]) and the sheriff's fees involved in the sale of the Property would have to be paid. CPLR 8011, 8012. 8013. Thus, this Court believes it would be inequitable to direct the sale of William's interest in

the property if Columbia would receive little or nothing that could be applied to the satisfaction of its judgment from the proceeds of sale.

Therefore, before this Court directs the sale of Williams interest in the property, Columbia should establish its value and that the sale of that interest will bring a sum of money that, after payment of the homestead exemption and sheriff's fees, will reduce the principal due on the judgment to a reasonable extent.

This should not impair the lien of the judgment on the Property. Thus, if Mesibov sells the property, the judgment would have to be satisfied to clear title. Further, this determination would not affect any rights Columbia might have to execute against the Property in the future should William survive Barbara and the judgment remains unsatisfied.

Accordingly, it is,

ORDERED, that Respondents' motion to renew is denied; and it is further,

ORDERED, that Petitioners' cross-motion to renew is denied; and it is further,

ORDERED, that counsel for the parties are directed to appear for a hearing on February 26, 2007 at 9:30 a.m. to determine the value of William's interest in the Property consistent with this Court's Order of July 10, 2006 and the foregoing.

This constitutes the decision and Order of the Court.

Dated: Mineola, NY_____________________________

February 6, 2007Hon. LEONARD B. AUSTIN, J.S.C. [*5]