Herzog v. Herzog

28 A.D.3d 716, 812 N.Y.S.2d 881

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 25, 2006
• Status: Published

Opinion

In an action, inter alia, to recover damages for malicious prosecution, the plaintiff appeals from an order of the Supreme Court, Nassau County (Cozzens, J.), dated June 8, 2005, which denied his motion, in effect, for leave to reargue a prior motion to vacate the dismissal of the action and to restore the action to the trial calendar.

Ordered that the appeal is dismissed, without costs or disbursements.

Although the Supreme Court treated the plaintiffs motion as one for leave to renew, the motion was not based on new facts which were unavailable at the time of the original motion. Therefore, the motion was, in effect, one for leave to reargue, the denial of which is not appealable (see Absolute Fin. Servs. v 535 Broadhollow Realty, 292 AD2d 327 [2002]; Duffy v Wetzler, 260 AD2d 596, 597 [1999]; SantaMaria v Schwartz, 238 AD2d 569 [1997]). Florio, J.P., Santucci, Mastro, Rivera and Covello, JJ., concur.