SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

497 

CA 15-00805 

PRESENT: SMITH, J.P., CENTRA, DEJOSEPH, CURRAN, AND SCUDDER, JJ. 

 

INDUS PVR LLC, PLAINTIFF-RESPONDENT, 

V MEMORANDUM AND ORDER

MAA-SHARDA, INC., DEFENDANT-APPELLANT, 

ROSHAN HOSPITALITY, INC., ET AL., DEFENDANTS. 

(APPEAL NO. 1.) 

 

FRANK A. ALOI, ROCHESTER, AND ROBERT J. LUNN, FOR DEFENDANT-APPELLANT. 

WOODS OVIATT GILMAN LLP, ROCHESTER (JOHN C. NUTTER OF COUNSEL), FOR

PLAINTIFF-RESPONDENT. 

 

Appeal from a judgment of the Supreme Court, Ontario County

(Matthew A. Rosenbaum, J.), entered September 16, 2014. The judgment,

among other things, adjudged that the mortgaged premises described in

the complaint in this action be sold at public auction. 

It is hereby ORDERED that the judgment so appealed from is

unanimously affirmed without costs.

Memorandum: These consolidated appeals arise from a foreclosure

action commenced by First-Citizens Bank and Trust Co. (First-Citizens)

against, inter alia, MAA-Sharda, Inc. (defendant). Plaintiff, Indus

PVR LLC, was thereafter substituted as plaintiff for First-Citizens. 

In appeal No. 1, defendant appeals from a judgment of foreclosure. In

appeal No. 2, defendant appeals from an order that granted in part its

motion to set an undertaking in appeal No. 1 and, in appeal No. 3,

defendant appeals from an order that denied its motion for leave to

renew and reargue its opposition to plaintiff’s motion for a judgment

of foreclosure in appeal No. 1.

Initially, we note that defendant failed to present any argument

in its brief regarding the order in appeal No. 2, and thus it has

abandoned any contentions with respect to that order (see Davis v

School Dist. of City of Niagara Falls, 4 AD3d 866, 867; Ciesinski v

Town of Aurora, 202 AD2d 984, 984). We therefore dismiss defendant’s

appeal from the order in appeal No. 2. In addition, it is well

settled that “no appeal lies from an order denying leave to reargue”

(Hill v Milan, 89 AD3d 1458, 1458; see Empire Ins. Co. v Food City,

167 AD2d 983, 984), and thus we dismiss the appeal from the order in

appeal No. 3 to the extent that defendant sought leave to reargue. We

otherwise affirm the order in appeal No. 3 inasmuch as the facts

presented by defendant in seeking leave to renew “ ‘would [not] change
-2- 497 

CA 15-00805 

the prior determination’ ” (Chiappone v William Penn Life Ins. Co. of

N.Y., 96 AD3d 1627, 1628, quoting CPLR 2221 [e] [2]).

In appeal No. 1, defendant contends that it was entitled to

limited discovery on the amount due under the second of the two notes

underlying the mortgages upon which foreclosure was sought. We reject

that contention. It is well settled that “a defendant forfeits the

right to discovery by defaulting in answering the complaint”

(Kolonkowski v Daily News, L.P., 112 AD3d 677, 678 [internal quotation

marks omitted]; see Rudra v Friedman, 123 AD3d 1104, 1105; Yeboah v

Gaines Serv. Leasing, 250 AD2d 453, 454), and, in this case, defendant

failed to serve an answer. In seeking discovery despite that failure,

defendant relies on RPAPL 1321 (1), which states in pertinent part

that, where a defendant in a foreclosure action “fails to answer

within the time allowed . . . , upon motion of the plaintiff, the

court . . . [may] direct a referee to compute the amount due to the

plaintiff.” Based on that statute, a non-answering defendant may

“apply to have [its] claim considered by the court . . . to the extent

it relates to the amount due on the mortgage debt” (Federal Natl.

Mtge. Assn. v Connelly, 84 AD2d 805, 806). 

Here, notwithstanding defendant’s characterization of its

contention, we conclude that defendant does not seek discovery to

support a challenge to the amount due under the mortgages. To the

contrary, defendant seeks discovery in order to establish a defense to

the foreclosure action, and thus the court properly denied defendant’s

discovery request based on its default in answering the complaint (see

Rudra, 123 AD3d at 1105; Singh v Friedson, 36 AD3d 605, 606, lv

dismissed 9 NY3d 861). Defendant contends that plaintiff may not

collect on the second note because that debt was discharged when

First-Citizens filed an IRS form 1099-C, and it seeks discovery to

establish that First-Citizens took a tax write-off on the second note

that, according to defendant, establishes that plaintiff may no longer

collect on that debt (cf. FDIC v Cashion, 720 F3d 169, 179). We

therefore affirm the judgment in appeal No. 1. 

Defendant’s further contentions are academic in light of our

determination. 

Entered: June 10, 2016 Frances E. Cafarell

Clerk of the Court