Graham

The plaintiff mortgagee brought a motion for summary judgment against the defendant mortgagor and guarantor for the balance owing on a mortgage and for dismissal of the defendants' counterclaim.

The defendants failed to file responding materials on time or submit to cross-examination.

The Master granted summary judgment for the plaintiff on the main action for $102,353.27, finding no genuine issue requiring a trial.

The Master also dismissed the defendants' counterclaim for breach of fiduciary duty but declined to dismiss the remaining counterclaims for trespass and vandalism, finding the plaintiff's evidence insufficient to refute those specific allegations.

The plaintiff moved to amend her statement of claim to add a claim for unidentified motorist coverage against the defendant insurer.

However, the plaintiff had previously brought a motion for the same relief in 2005 and delivered a notice of abandonment.

The court held that an abandoned motion cannot be revived absent inadvertence, mistake, misapprehension, or compelling special circumstances.

Finding no such circumstances, the court dismissed the motion to withdraw the notice of abandonment, thereby dismissing the motion to amend the statement of claim.