        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
