Delgrosso v. 1325 Ltd. Partnership

306 A.D.2d 241, 760 N.Y.S.2d 331

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 2, 2003
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Queens County (Golia, J.), dated August 12, 2002, which granted the plaintiff’s motion for leave to reargue, and, upon reargument, inter alia, vacated a prior order of the same court, dated April 29, 2002, granting their cross motion to dismiss the complaint for failure to prosecute pursuant to CPLR 3216.

Ordered that the order is reversed, on the law, with costs, upon reargument, the motion is denied, and the order dated April 29, 2002, is reinstated.

The Supreme Court should have denied the plaintiff’s motion, denominated as one for leave to reargue. The plaintiffs failed to establish that the court overlooked or misapprehended any relevant facts, or misapplied any controlling principle of law (see Foley v Roche, 68 AD2d 558, 567 [1979]). In any event, the plaintiff’s papers on reargument failed to demonstrate either a reasonable excuse for his failure to file a timely note of issue, or the existence of a meritorious cause of action (see CPLR 3216 [e]; Papadopoulas v R.B. Supply Corp., 152 AD2d 552 [1989]). Florio, J.P., S. Miller, Friedmann, Adams and Rivera, JJ., concur.