DECISION AND ORDER The Decision and Order dated November 5, 2020, granted Defendant Bernard Booker a/k/a J. Bernard Booker’s (“Defendant”) motion, dismissing the complaint as untimely and granting Defendant’s requests for the removal of the mortgage lien on Defendant’s property located at 556 South 11th Avenue, Mount Vernon, New York 10550, and attorneys’ fees pursuant to RPAPL §282 (Motion Sequence 001) upon the filing of an affirmation detailing the services provided with invoices along with a proposed order. In deciding Plaintiff’s Notice of Motion (Motion Sequence 002) seeking leave to reargue and to renew Defendant’s motion pursuant to CPLR R 2221 and Defendant’s Cross-Motion (Motion Sequence 003) to remove the Notice of Pendency on the Property and for attorney’s fees pursuant to RPAPL §282, the Court reviewed and considered the documents uploaded to the New York State Court Electronic Filing (NYSCEF) system that are referenced herein. BACKGROUND In 2021, Plaintiff commenced a foreclosure action against Defendant seeking the acceleration of the entire principal balance due and owing on the mortgage. The action was dismissed as abandoned on November 28, 2016, for Plaintiff’s failure to take proceedings to enter judgment within one year after Defendant’s default pursuant to CPLR §3215(c). See the Decision and Order dated November 5, 2020 (NYSCEF Doc. No. 58). Pursuant to CPLR §205(a), “If an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or final judgment upon the merits…[the plaintiff] may commence a new action upon the same transaction or occurrence…within six months after the termination provided that the new action…would have been timely commenced at the time of commencement of the prior action and that service upon defendant is effected within such six-month period.” Applying CPLR §205(a), this Court found Plaintiff’s six-month extension under CPLR §205(a) commenced on June 5, 2019, when Plaintiff’s appeals as of right (CPLR §5601) were exhausted and expired on December 5, 2019. See, Lehman Bros. v. Hughes Hubbard & Reed, L.L.P., 92 N.Y.2d 1014 (1998) and Cheryl Andrea et al. v. Arnone, Hedin, Casker, Kennedy & Drake, Architects & Landscape Architects, P.C. (Habiterra Assocs.) et al., 8 A.D.3d 1080 (4th Dept. 2004); see also, NYSCEF Doc. No. 52 at paragraph 19 and NYSCEF Doc. No. 57 at paragraphs 3-7. While it was undisputed on the underlying motion that more than six years (CPLR §213 [4]), had elapsed since acceleration of the entire debt in 2012, Plaintiff commenced the instant action on December 3, 2019 (Summons and Complaint, NYSCEF Doc. No. 1), again declaring the balance of the principal immediately due and payable, with service on Defendant pursuant to CPLR §308 (4) by affixing the Summons and Complaint with Certificate of Merit to Defendant’s door on December 5, 2019, and mailing same on December 6, 2019 (Affidavit of Service at NYSCEF Doc. No. 122). In response to the Complaint, Defendant filed his Answer and Counterclaims (NYSCEF Doc. No. 139) on January 17, 2020, alleging four affirmative defenses including dismissal based upon the statute of limitations, and two counterclaims of canceling and discharging the mortgage of record pursuant to RPAPL §1501(4) and a request for an award of counsel fees. Plaintiff filed a Verified Reply to Counterclaim on February 4, 2020 (NYSCEF Doc. No. 140). See also, Wells Fargo Bank, N.A. v. Burke, 94 A.D.3d 980 (2d Dept. 2012). DISCUSSION Motion Sequence 002 Upon documents electronically filed (NYSCEF Doc. Nos. 119-140, 145-147, and 153), Plaintiff moves for reargument pursuant to CPLR R 2221(d) and renewal pursuant to CPLR R 2221 (e), and §§2001 and 306-b, as well as for additional time to serve, partial summary judgment and to vacate monetary awards (Affidavit of Ryan Mitola [Memorandum 002], NYSCEF Doc. No. 121, at 1). Reargument The standards for reargument are well settled. “A motion for leave to reargue ‘shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion.’” See, Rodriguez v. Gutierrez, 138 AD3d 964, 966 (2d Dept 2016) (internal citations omitted); CPLR §2221; Carillo v. PM Realty Group, 16 AD3d 611 [2d Dept 2005]). The determination to grant leave to reargue lies within the sound discretion of the court (see Veeraswamy Realty v. Yenom Corp., 71 A.D.3d 874 [2d Dept 2010]). However, reargument is not a proper vehicle to present new issues that could have been, but were not raised, on the prior motion or to afford an unsuccessful party successive opportunities to rehash arguments previously raised and considered (see People v. D’Alessandro, 13 N.Y.3d 216, 219 [2009]. Plaintiff contends this Court misunderstood the law “by counting the 10 days for service to be complete period [sic] under CPLR §308(4) for CPLR §205 purposes” (Memorandum 002 at 10). The Defendant was served by “nail and mail” service on the last day of the period allowed for service. According to CPLR §308(4), “nail and mail” service is not complete until ten days after the mailing and filing of the affidavit of service. Hence, the Court found the action time barred under CPLR §205 (a), as the statute makes it clear that for the instant action to be timely, the prior action had to have been timely and service upon Defendant had to have been effected within the six-month extension period. Plaintiff argues this is a hyper-technical argument, which “goes against the Court’s liberal construction of CPLR §205 [which] Courts in the Second Department have always construed…as giving the Plaintiff a legitimate ‘second bite of the apple’” (Memorandum 002 at 11). In a CPLR §205 action, as in an original action, “late service may be excused in the interest of justice” (Marinelli v. Sroka, 8 Misc. 3d 863, 866 [Sup. Ct. 2005]). However, in the underlying motion, plaintiff did not request late service be excused, or seek an extension of the time to serve. This Court cannot be deemed to have erred in failing to grant relief which was not requested. Plaintiff has had his second bite at the apple, under the auspices of CPLR §205. He failed to complete service during the time allotted by that statute, and now seeks yet a third bite. Plaintiff has failed to show this Court overlooked or misapprehended the facts or the law, therefore, this Court declines to use its discretion to allow reargument. Plaintiff’s motion for reargument is denied. Renewal Plaintiff also moves to renew the motion on the ground that Defendant’s correct address was not the address he had used to register with the DMV (Memorandum 002 at 13). He had registered his address with the DMV as 556 South 11th Avenue, Mount Vernon, New York 10550 (“the Premises”) without specifying he lived on the second floor, which Plaintiff argues frustrated attempts at service (Memorandum 002 at 13-14). Plaintiff asks for Defendant to be estopped from claiming improper and/or untimely service, as Defendant provided the DMV with the incorrect address (id. at 14). A motion for leave to renew must be based on evidence establishing “new facts not offered on the prior motion that would change the prior determination” (CPLR §2221 [e] [2]), as well as “reasonable justification” for not offering these facts previously (CPLR §2221 [e] [3]; Ferraro Foods, Inc. v. Guyon, Inc., 165 A.D.3d 628, 630 (2d Dept 2018). Although, upon a motion for renewal seeking consideration of previously available but unsubmitted evidence, the Movant is generally required to proffer a reasonable excuse for its failure to submit such evidence (see, Constructamax, Inc. v. Dodge Chamberlin Luzine Weber, Assoc. Architects, LLP, 157 A.D.3d 852 (2d Dept 2018), This new fact, that Defendant lived on the second floor of the Premises, rather than in the entire Premises, would not have changed the prior decision, which was based on Plaintiff’s failure to effectuate timely service (NYSCEF Doc. No. 58, at 3). Plaintiff did not request additional time to serve in the underlying motion, so this issue was not before the Court. Accordingly, the motion to renew the underlying motion is denied. Extension of Time to Serve Plaintiff also seeks an extension of time to serve Defendant and for the alleged recent, post-dismissal, service to be deemed timely (Memorandum 002, at 2). This portion of the motion must also be denied, as, “[a]fter the previous proceeding was dismissed, there no longer [i]s a timely-commenced, pending proceeding in which the [Plaintiff] could seek such leave” (Rodamis v. Cretan’s Ass’n Omonoia, Inc., 22 A.D.3d 859, 860 [2d Dept 2005]). Partial Summary Judgment As far as Plaintiff moves for partial summary judgment, that portion of the motion is also denied, as this action has already been dismissed. Motion Sequence 003 Upon documents electronically filed with the New York State Courts Electronic Filing system (NYSCEF Doc. Nos. 144-147 and 151-152), Plaintiff moves for an award of counsel fees incurred on Motion Sequence 003, for a total of $1,800.00, representing six hours of legal work at $300 per hour, and an order cancelling the Notice of Pendency and directing the Westchester County Clerk, Division of Land Records, to remove the lien (NYSCEF Doc. No. 3) of Plaintiff’s mortgage on Defendant’s property, as this case has been dismissed (Hoch Affirmation, NYSCEF Doc. No. 145, at 7). Plaintiff opposes the motion to cancel the lien on the grounds that Defendant failed to move to cancel the lien when it moved to dismiss this case, so the relief was not granted when the motion to dismiss was granted and Defendant’s unsolicited proposed order, filed in January of 2021, was ignored (Mitola Affirmation, NYSCEF Doc. No. 151, at 1-2). Plaintiff argues this motion should be deemed a motion to reargue and/or modify the prior Order and denied (id. at 34). As far as Defendant moves for an order cancelling the lien, that motion has already been granted by the underlying Decision and Order, so that portion of the motion is denied as moot. Plaintiff does not oppose the motion (Motion Sequence 003) for additional attorneys’ fees (NYSCEF Doc. Nos. 145, at 7, and also 63-67), and that portion of the motion shall be granted pursuant to RPAPL §282, as was the similar request in Motion Sequence 001. Accordingly, it is hereby ORDERED, that the Plaintiff’s motion to renew and to reargue, among other relief (Motion Sequence 002), is hereby denied; and it is further ORDERED, that Defendant’s motion for counsel fees is granted pursuant to RPAPL §282 (Motion Sequence 003) is granted in the amount of $1,800.00; and it is further ORDERED, that Defendant’s motion to remove the mortgage lien (Motion Sequence 003) is granted.; and it is further ORDERED, that the portion of Defendant’s motion (Motion Sequence 003) seeking the removal of the mortgage lien is denied as moot, as that relief was granted by the Decision and Order dated November 5, 2020, in this matter (NYSCEF Doc. No. 58). As that relief has already been granted, but the Decision and Order did not include a specific order to the Westchester County Clerk Division of Land Records, it is hereby ORDERED, that the Westchester County Clerk Division of Land Records shall remove the lien of Plaintiff’s mortgage on Defendant’s property located at 556 South 11th Avenue, Mount Vernon, New York 10550. Defendant shall serve this Decision and Order upon the Westchester County Clerk Division of Land Records on or before July 23, 2021. To the extent not addressed, the remaining relief is denied. This constitutes the Decision and Order of this Court. Dated: July 8, 2021
