Bittorf v. 225 West End Avenue Associates

232 A.D.2d 344, 648 N.Y.S.2d 920, 1996 N.Y. App. Div. LEXIS 11200

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 31, 1996
• Status: Published

Opinion

—Appeal from order, Supreme Court, New York County (Ira Gammerman, J.), entered February 5, 1996, which deemed plaintiffs motion "to renew and/or to reargue” a prior order, same court (Michael Dontzin, J.), entered on or about May 28, 1992, insofar as such order found that plaintiff had participated in a fraud against a former defendant herein, to be a motion for reargument, and, so considered, denied the motion, unanimously dismissed as taken from a nonappealable order, with costs to defendant-respondent.

The motion was properly deemed one for reargument in the absence of additional material facts that existed at the time of the proceedings before Justice Dontzin but were not then known to plaintiff (Foley v Roche, 68 AD2d 558, 568). We should add that the fact plaintiff seeks to relitigate—his participation in a fraud against a former defendant in this foreclosure action who held a competing mortgage—has already been given res judicata effect in an action by the former defendant against plaintiff and others to recover damages for the fraud (Manufacturers & Traders Trust Co. v Bittorf, 216 AD2d 72). Concur— Rosenberger, J. P., Ellerin, Rubin, Kupferman and Nardelli, JJ.