Arena v. City of New York

23 A.D.2d 847, 259 N.Y.S.2d 259, 1965 N.Y. App. Div. LEXIS 4309

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 3, 1965
• Status: Published

Opinion

In an action by a wife and her husband to recover damages for personal injury and derivative medical expenses, the plaintiffs appeal from so-called “ orders ” of the Supreme Court, Kings County, described in the notice of appeal as follows: (1) an order “entered * * ■* November 13, 1964, denying the motion for reargument and reconsideration”; (2) an order “entered * * * November 8th, 1961, denying a Rule 9 preference”; (3) an order “ entered * 6 * December 19th, 1961, denying the motion for reconsideration of the Rule 9 preference ”; and (4) an order “ entered * * * September 28th, 1964, denying the plaintiffs a preference”. Appeal dismissed, without costs. The order of November 13, 1964 merely denies reargument and reconsideration of prior motions and is not appealable (Mitchell v. A. A. Truck Renting Gorp., 21 A D 2d 677). The so-called orders of November 8, 1961 and December 19, 1961 are in fact not orders but memorandum decisions of the court. No appeal lies therefrom (Quaglio v. Weiss, 21 A D 2d 884). Nor, in the absence of a recitation of the papers used on the motion, may such decisions be treated as appealable orders (CPLR 2219, subd. [a]; of. Haftel v. Appleton, 21 A D 2d 651; Matter of Gowdey, 101 App. Div. 275). The purported order of September 28, 1964 is not contained in the record. No appeal lies therefrom (Atkin v. New York State Elec, é Gas Co., 18 A D 2d 821). In any event, we have examined the merits and find no abuse of discretion in the denial of a calendar preference. Beldock, P. J., Ughetta, Christ, Brennan and Hopkins, JJ., concur.