Simpson v. Sutton East Associates 86 , 665 N.Y.S.2d 855 ( 1997 )

—Order, Supreme Court, New York County (Joan Lobis, J.), entered May 15, 1996, which, in an action to foreclose a mortgage, denied plaintiffs’ motion for leave to serve an amended and supplemental complaint, unanimously affirmed, with costs.

The motion was properly denied on the grounds that the proposed complaint contains factual allegations controverting the factual finding made by the IAS Court in a prior order denying plaintiff’s motion for summary judgment (see, CPLR 3212 [g]), affirmed on appeal (221 AD2d 279), that defendants’ mechanics’ liens had priority over plaintiffs’ mortgage, and that plaintiffs failed to satisfy their “heavy burden” of showing that the newly alleged facts, which were extant at the time of their original motion, could not have been known by them at any time before the perfection of the appeal on the prior order (Matter of Beiny, 132 AD2d 190, 210, lv dismissed 71 NY2d 994; Levitt v County of Suffolk, 166 AD2d 421, 422-423, lv dismissed 77 NY2d 834; cf., CPLR 5015 [a] [2]). We have considered plaintiffs’ other arguments and find them to be without merit. Concur—Murphy, P. J., Wallach, Tom and Andrias, JJ.