Johnson v. Banner International Corp.

125 A.D.3d 498, 999 N.Y.S.2d 894

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 17, 2015
• Docket: 106510/11
• Status: Published

Opinion

Appeal from order, Supreme Court, New York County (Arlene P. Bluth, J.), entered October 11, 2013, which denied plaintiffs motion to reargue, denominated a motion to vacate, unanimously dismissed, without costs, as taken from a nonappealable paper.

Plaintiff never filed a notice of appeal from the court’s March 22, 2013 order dismissing his complaint pursuant to CPLR 3126. Although denominated a motion to vacate, plaintiffs subsequent motion was, in actuality, one to reargue the prior order that had dismissed his complaint. Accordingly, the order denying plaintiffs subsequent motion is nonappealable (see Steinhardt Group v Citicorp, 303 AD2d 326, 326-327 [1st Dept 2003], lv denied 100 NY2d 506 [2003]; Federation of Puerto Rican Orgs. of Brownsville v Mateo, 235 AD2d 326 [1st Dept 1997], lv dismissed 90 NY2d 844 [1997]). If we were to review the order, we would affirm the denial of the subsequent motion, as plaintiff failed to provide a reasonable excuse for his noncompliance with the court’s numerous discovery orders (see Gibbs v St. Barnabas Hosp., 16 NY3d 74, 80 [2010]).

Concur— Gonzalez, P.J., Acosta, Saxe, Manzanet-Daniels and Clark, JJ.