Giovanni v. Moran

11 A.D.3d 429, 782 N.Y.S.2d 384, 2004 N.Y. App. Div. LEXIS 11616

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 4, 2004
• Status: Published

Opinion

In an action, inter alia, to recover damages for breach of contract, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Segal, J.), entered May 27, 2003, as denied his motion, in effect, for leave to reargue his prior motion pursuant to CPLR 5015 (a) (1) to vacate a judgment entered upon his default.

Ordered that the appeal is dismissed, without costs or disbursements, as no appeal lies from an order denying reargument.

The Supreme Court properly treated the defendant’s motion as one for leave to reargue because it was not based upon new facts that were unavailable at the time of the original motion (see CPLR 2221 [d]; Nam Jin Chung v M & S Deli, 293 AD2d 725 [2002]; Cong. Bais Rabbenu v 26 Adar N.B. Corp., 282 AD2d 642 [2001]; Frisenda v X Large Enters., 280 AD2d 514 [2001]). No appeal lies from an order denying reargument (see Nam Jin Chung v M & S Deli, supra; Cong. Bais Rabbenu v 26 Adar N.B. Corp., supra; Frisenda v X Large Enters., supra). Altman, J.P., Krausman, Luciano, Mastro and Lifson, JJ., concur.