ITT Small Business Finance Corp. v. Schulz

251 A.D.2d 457, 673 N.Y.S.2d 334, 1998 N.Y. App. Div. LEXIS 6831

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 15, 1998
• Status: Published

Opinion

—In an action to foreclose a mortgage, the defendants Frank Schulz and Linda Schulz appeal from (1) an order of the Supreme Court, Richmond County (J. Leone, J.), entered February 10, 1997, which, inter alia, granted the plaintiffs motion for summary judgment, and (2) an order of the same court, entered September 4, 1997, which denied their motion, denominated as one to renew and reargue, which was, in effect, for reargument of the plaintiffs motion for summary judgment.

Ordered that the appeal from the order entered September 4, 1997, is dismissed, as no appeal lies from an order denying reargument; and it is further,

Ordered that the order entered February 10, 1997, is affirmed; and it is further,

Ordered that the respondent is awarded one bill of costs.

Contrary to the appellants’ contention, they failed to raise a material issue of fact sufficient to defeat the plaintiffs motion for summary judgment (see, Knowles v City of New York, 176 NY 430). Furthermore, their allegation that the plaintiff violated RPAPL 1301 (1) is raised for the first time on appeal and is thus not properly before this Court. In any event, it is without merit.

Finally, the appellants’ motion denominated as one to renew and reargue was, in effect, for reargument, the denial of which is not appealable (see, e.g., Misek-Falkoff v Village of Pleasantville, 207 AD2d 332, 333). O’Brien, J. P., Sullivan, Pizzuto and Krausman, JJ., concur.