Forbes v. Giacomo

Appellate Division of the Supreme Court of New York

Forbes v. Giacomo

130 A.D.3d 428, 11 N.Y.S.3d 485

Appellate Division of the Supreme Court of the State of New York·Decided July 2, 2015·No. 157640/12 15582 15581·Published·Cited by 4 cases

Opinion

Appeal from order, Supreme Court, New York County (Anil C. Singh, J.), entered on or about October 25, 2013, which granted defendants’ motion to dismiss the complaint, unanimously dismissed, without costs, as untimely taken. Order, same court and Justice, entered on or about June 9, 2014, which denied plaintiff’s motion for reargument, unanimously dismissed, without costs, as taken from a nonappealable paper.

Plaintiff did not file a notice of appeal from the October 24, 2013 order until months after she was served with the order and notice of entry, i.e. on July 8, 2014 (see CPLR 5513 [a]). Contrary to her contention, “a motion to reargue may not be used by a party to extend its time to appeal” (Luming Cafe v Birman, 125 AD2d 180, 180-181 [1st Dept 1986]).

No appeal lies from an order denying reargument (see Cangro v Rosado, 111 AD3d 422 [1st Dept 2013]). The motion court did not address the merits of the motion (cf. Lipsky v Manhattan Plaza, Inc., 103 AD3d 418 [1st Dept 2013] [order purporting to deny motion for reargument but addressing merits is appeal-able as of right]). Concur — Mazzarelli, J.P., Friedman, Richter, Manzanet-Daniels and Gische, JJ.

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Appeal from order, Supreme Court, New York County (Anil C. Singh, J.), entered on or about October 25, 2013, which granted defendants’ motion to dismiss the complaint, unanimously dismissed, without costs, as untimely taken. Order, same court and Justice, entered on or about June 9, 2014, which denied plaintiff’s motion for reargument, unanimously dismissed, without costs, as taken from a nonappealable paper.

Plaintiff did not file a notice of appeal from the October 24, 2013 order until months after she was served with the order and notice of entry, i.e. on July 8, 2014 (see CPLR 5513 [a]). Contrary to her contention, “a motion to reargue may not be used by a party to extend its time to appeal” (Luming Cafe v Birman, 125 AD2d 180, 180-181 [1st Dept 1986]).

No appeal lies from an order denying reargument (see Cangro v Rosado, 111 AD3d 422 [1st Dept 2013]). The motion court did not address the merits of the motion (cf. Lipsky v Manhattan Plaza, Inc., 103 AD3d 418 [1st Dept 2013] [order purporting to deny motion for reargument but addressing merits is appeal-able as of right]). Concur — Mazzarelli, J.P., Friedman, Richter, Manzanet-Daniels and Gische, JJ.

Forbes v. Giacomo, 130 A.D.3d 428, 11 N.Y.S.3d 485 (N.Y. Ct. App. 2015).

Pincite

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Opinion

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