Carillo v. Axelrod

83 A.D.2d 552, 441 N.Y.S.2d 19, 1981 N.Y. App. Div. LEXIS 14843

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 6, 1981
• Status: Published

Opinion

In a proceeding pursuant to CPLR article 78 to compel the respondent to consider an appeal relating to a 1974 Medicaid reimbursement rate, petitioner appeals from (1) a judgment of the Supreme Court, Suffolk County (Gowan, J.), entered July 2,1980, which dismissed the petition, and (2) an order of the same court, dated May 27, 1981, which denied his application for leave to reargue and/or renew the petition. (We deem the notice of appeal dated February 11, 1981 to be a premature notice of appeal from the order.) Judgment affirmed. Appeal from the order dismissed. No appeal lies from an order denying a motion to reargue. Respondent is awarded one bill of $50 costs and disbursements. The motion for leave to reargue and/or renew having presented no new facts unavailable to petitioner as of the time that the original decision was rendered, it shall be treated as a motion for reargument and its denial is therefore not appealable (see Flock v Flock, 81 AD2d 605; Matter of Dowling v Bowen, 53 AD2d 862). The denial of petitioner’s salary reimbursement appeal on February 4, 1975 exhausted all administrative remedies. Since this proceeding was not commenced within four months of that date it is time barred pursuant to CPLR 217. Hopkins, J. P., Gibbons, O’Connor and Thompson, JJ., concur.