Britt v. Buffalo Municipal Housing Authority

115 A.D.3d 1252, 982 N.Y.S.2d 649

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 21, 2014
• Status: Published

Opinion

Appeal from an order of the Supreme Court, Erie County (Diane Y. Devlin, J.), entered February 6, 2013. The order denied the motion of plaintiff seeking “to renew” and to vacate a prior order.

It is hereby ordered that said appeal is unanimously dismissed without costs.

Memorandum: Plaintiff appeals from an order that denied her motion seeking “to renew” and to vacate a prior order in which Supreme Court granted the respective motion and cross motions (motions) of defendants seeking, inter alia, summary judgment dismissing the second amended complaint against them. We previously dismissed plaintiffs appeal from the prior order, determining that, because plaintiff failed to respond to defendants’ motions or to appear on the return date for oral argument, the prior order was entered upon plaintiffs default, and no appeal could be taken therefrom (Britt v Buffalo Mun. Hous. Auth., 109 AD3d 1195, 1196 [2013]). Although plaintiff characterized her motion herein as a motion “to renew,” she does not raise a new question of law or fact {see CPLR 2221 [e] [2]), and thus we conclude that she sought only leave to reargue (see Hilliard v Highland Hosp., 88 AD3d 1291, 1292-1293 [2011]). Inasmuch as no appeal lies from the denial of a motion seeking leave to reargue, we dismiss the appeal (see id.; Empire Ins. Co. v Food City, 167 AD2d 983, 984 [1990]).

Present — Scudder, EJ., Feradotto, Carni, Lindley and Valentino, JJ.