Ashton v. Goldberg

201 A.D.2d 601, 612 N.Y.S.2d 866, 1994 N.Y. App. Div. LEXIS 1452

Opinion

In a medical malpractice action, the plaintiff appeals from (1) an order of the Supreme Court, Nassau County (Robbins, J.), dated January 11, 1991, which granted the defendants’ motion pursuant to CPLR 3216 to dismiss the complaint for failure to prosecute, and denied the plaintiff’s cross motion for an order of preclusion, and (2) so much of an order of the same court, dated September 11, 1991, as denied the plaintiff’s motion, denominated as one for renewal, which was, in fact, for reargument. We deem point I of the respondents’ brief a motion to renew the respondents’ cross motion to dismiss the appeal from the order dated January 11, 1991, and refer the same to Associate Justices Bracken, Sullivan, Balletta and Copertino, which, upon renewal, have dismissed that appeal in a decision and order on motion decided herewith [201 AD2d 602].

Ordered that the appeal from the order dated September 11, 1991, is dismissed, with costs.

Contrary to the plaintiffs contention, the court properly treated his motion to "renew or reargue”, dated June 4, 1991, as one for reargument (see, Gurwicz v Greenberg, 166 AD2d 303; McKay v H.I.P. of Greater N. Y., 163 AD2d 280). Since no appeal lies from an order denying reargument, the appeal from the order dated September 11, 1991, is dismissed. Bracken, J. P., Balletta, O’Brien and Pizzuto, JJ., concur.