Drice v. Queens County District Attorney

136 A.D.3d 665, 23 N.Y.S.3d 896

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 3, 2016
• Docket: 2013-07504
• Status: Published

Opinion

— In an action, inter alia, to recover damages for civil rights violations pursuant to 42 USC § 1983, the plaintiff appeals from an order of the Supreme Court, Queens County (Flug, J.), dated May 20, 2013, which denied his motion for leave to reargue his opposition to the defendants’ motions pursuant to CPLR 3211 (a) to dismiss the complaint insofar as asserted against each of them, which had been granted in separate orders of the same court dated November 28, 2012, and for leave to serve an amended complaint.

Ordered that the appeal from so much of the order dated May 20, 2013, as denied that branch of the plaintiff’s motion which was for leave to reargue is dismissed, as no appeal lies from an order denying reargument (see US Bank N.A. v Smith, 132 AD3d 848 [2015]); and it is further,

Ordered that the order dated May 20, 2013, is affirmed insofar as reviewed; and it is further,

Ordered that one bill of costs is awarded to the defendants appearing separately and filing separate briefs, payable by the plaintiff.

The Supreme Court providently exercised its discretion in denying that branch of the plaintiff’s motion which was for leave to serve an amended complaint, since he did not provide a copy of his proposed amended complaint, and the proposed amendments were palpably insufficient or patently devoid of merit (see CPLR 3025 [b]; Codrington v Wendell Terrace Owners Corp., 118 AD3d 844, 845-846 [2014]; Kilkenny v Law Off. of Cushner & Garvey, LLP, 76 AD3d 512, 513 [2010]; Chang v First Am. Tit. Ins. Co. of N.Y., 20 AD3d 502 [2005]).

Balkin, J.R, Dickerson, Duffy and LaSalle, JJ., concur.

Motion by the respondent Donna Furey to dismiss an appeal from an order of the Supreme Court, Queens County, dated May 20, 2013, insofar as taken against her. By decision and order on motion of this Court dated December 18, 2013, that branch of the motion which is to dismiss the appeal insofar as taken against the respondent Donna Furey on the ground that no appeal lies from an order denying reargument was held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the argument of the appeal, it is

Ordered that the branch of the motion which is to dismiss the appeal insofar as taken against the respondent Donna Furey on the ground that no appeal lies from an order denying reargument is denied as academic in light of the determination of the appeal.

Balkin, J.P., Dickerson, Duffy and LaSalle, JJ., concur.