Cruickshank v. Parajon

276 A.D.2d 662, 717 N.Y.S.2d 882, 2000 N.Y. App. Div. LEXIS 10673

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 23, 2000
• Status: Published

Opinion

In an action to recover damages for podiatric malpractice, the plaintiff appeals from (1) an order of the Supreme Court, Dutchess County (Pagones, J.), dated October 19, 1999, which denied her motion to reinstate her note of issue and for an extension of time to file a notice of podiatric malpractice, and (2) an order of the same court dated February 25, 2000, which denied her motion, in effect, for reargument.

Ordered that the appeal from the order dated February 25, 2000, is dismissed, as no appeal lies from the denial of reargument; and it is further,

Ordered that the order dated October 19, 1999, is affirmed; and it is further,

Ordered that the respondents are awarded one bill of costs.

Although the plaintiff denominated her later motion as one for reargument and renewal, that motion was in reality one for reargument, the denial of which is not appealable (see, Matter of Brooklyn Welding Corp. v Chin, 236 AD2d 392; Foley v Roche, 68 AD2d 558; see also, CPLR 2221 [e]).

The Supreme Court providently exercised its discretion in denying the plaintiffs motion to reinstate her note of issue and for an extension of time to file a notice of podiatric malpractice, since she failed to demonstrate a meritorious cause of action and a reasonable excuse for her delay in prosecuting the action (see, Vargas v Flatbush Pest Control, 178 AD2d 528). Bracken, J. P., Santucci, Altman and Florio, JJ., concur.