Dayon v. Chemical Bank

45 A.D.2d 827, 357 N.Y.S.2d 102, 1974 N.Y. App. Div. LEXIS 4527

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 2, 1974
• Status: Published

Opinion

Appeal from order, Supreme Court, New York County, entered May 1, 1974, insofar as it denied plaintiff’s motion to reargue, unanimously dismissed and said order unanimously modified, on the law and the facts, by reversing so much thereof as granted defendants’ cross motion to increase a fine, previously fixed at $250, to $785, and reinstating the fine of $250, with leave to plaintiff to purge himself of the contempt by either appearing for examination or paying the judgment for costs of $88.75 within 10 days of service of a copy of the order to be entered hereon, and, as so modified, affirmed, without costs or disbursements. A judgment for costs of $88.25 was imposed upon dismissal of the complaint. Plaintiff-appellant (judgment debtor) ignored a subpoena to appear for examination in supplementary proceedings and was fined $250 for contempt by order entered February 5, 1974, with leave to purge himself of the contempt by either appearing for examination or paying the judgment. After his time to appeal from the order of February 9, 1974 had elapsed, plaintiff moved for reargument and defendants cross-moved to increase the fine. Reargument was denied and the cross motion was granted to the extent of increasing the fine to $785. An order denying reargument is not appealable and a motion to reargue cannot be used to extend the time to appeal from the original order and should be made before the time to appeal has expired (2 Carmody-Wait 2d, New York Practice, § 8:81). With respect to the increase of the fine, it is out of proportion to the amount of the judgment, and it is noted that plaintiff in moving for reargument obtained a stay of the prior order. In this context, reinstatement of the fine in the amount of $250 is warranted. Concur — McGivern, P. J., Markewich, Nunez, Lupiano and Lane, JJ.