Liang v. Yi Jing Tan

2017 NY Slip Op 8363, 155 A.D.3d 1022, 65 N.Y.S.3d 455

Opinion

In an action, inter alia, to recover damages for conversion and fraud, nonparty Wei Ji appeals from an order of the Supreme Court, Queens County (Grays, J.), dated March 24, 2015, which denied her motion to “reargue and reconsider” the plaintiff’s application to impose a sanction against her in the amount of $3,255.

Motion by the plaintiff, inter alia, to dismiss the appeal on the ground that no appeal lies from an order denying reargument. By decision and order on motion of this Court dated February 11, 2016, that branch of the motion which is to dismiss the appeal on the ground that no appeal lies from an order denying reargument was held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the submission of the appeal, it is

Ordered that the branch of the motion which is to dismiss the appeal on the ground that no appeal lies from an order denying reargument is granted; and it is further,

Ordered that the appeal is dismissed, with costs.

The motion of nonparty Wei Ji, denominated as one to “reargue and reconsider” the plaintiffs application to impose a sanction against her in the amount of $3,255, was, in actuality, a motion for reargument. As the denial of a motion for reargument is not appealable (see George v Yoma Dev. Group, Inc., 83 AD3d 776 [2011]; Coccia v Liotti, 70 AD3d 747, 759 [2010]; Tokio Mar. & Fire Ins. Co., Ltd. v Borgia, 11 AD3d 603 [2004]), the appeal must be dismissed (see George v Yoma Dev. Group, Inc., 83 AD3d 776 [2011]; Fahey v County of Nassau, 111 AD2d 214 [1985]). The appellant’s contention that the motion should be treated as one to renew or vacate is not properly before us, as it is raised for the first time in her reply brief on appeal (see Barone v 1116 Ave. H Realty, LLC, 151 AD3d 928, 929 [2017]; Matter of Lemma v Nassau County Police Officer Indem. Bd., 147 AD3d 760, 763 [2017]).

Eng, P.J., Rivera, Roman and Connolly, JJ., concur.