Longo v. County of Nassau

Appellate Division of the Supreme Court of New York

Longo v. County of Nassau

6 A.D.3d 670, 775 N.Y.S.2d 172, 2004 N.Y. App. Div. LEXIS 4937

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 26, 2004

StatusPublished

Cited by1 cases

This text of 6 A.D.3d 670 (Longo v. County of Nassau) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Longo v. County of Nassau, 6 A.D.3d 670, 775 N.Y.S.2d 172, 2004 N.Y. App. Div. LEXIS 4937 (N.Y. Ct. App. 2004).

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Opinion

In an action, inter alia, to recover damages for malicious prosecution and abuse of process, the plaintiff appeals from (1) an order of the Supreme Court, Nassau County (Joseph, J.), dated February 19, 2003, which granted the defendants’ motion pursuant to CPLR 3211 to dismiss the complaint and (2) an order of the same court dated May 28, 2003, which denied his motion for leave to renew and reargue, which was, in fact, a motion for leave to reargue.

Ordered that the appeal from the order dated May 28, 2003, is dismissed, as no appeal lies from an order denying reargument; and it is further,

Ordered that the order dated February 19, 2003, is affirmed; and it is further,

Ordered that one bill of costs is awarded to the defendants.

[671]*671The record supports the Supreme Court’s determination that the plaintiff failed to state a cause of action to recover damages for malicious prosecution (see Johnson v Kings County Dist. Attorney’s Off., 308 AD2d 278 [2003]) and abuse of process (see Hauser v Bartow, 273 NY 370 [1937]). Accordingly, those causes of action were properly dismissed.

The plaintiffs motion, characterized as one for leave to renew and reargue, was not based upon new facts which were unavailable to him at the time he submitted his opposition to the defendants’ motion to dismiss the complaint (see Elias v Grossman, 306 AD2d 432 [2003]). Moreover, the plaintiff failed to offer a valid excuse why the additional evidence upon which he relied was not previously submitted (see Bossio v Fiorillo, 222 AD2d 476 [1995]). Therefore, the motion for leave to renew and reargue was, in fact, a motion for leave to reargue, the denial of which is not appealable (see CPLR 2221; Elias v Grossman, supra; Bossio v Fiorillo, supra).

The plaintiffs remaining contentions are without merit. H. Miller, J.P, Luciano, Schmidt and Townes, JJ., concur.

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In an action, inter alia, to recover damages for malicious prosecution and abuse of process, the plaintiff appeals from (1) an order of the Supreme Court, Nassau County (Joseph, J.), dated February 19, 2003, which granted the defendants’ motion pursuant to CPLR 3211 to dismiss the complaint and (2) an order of the same court dated May 28, 2003, which denied his motion for leave to renew and reargue, which was, in fact, a motion for leave to reargue.

Ordered that the appeal from the order dated May 28, 2003, is dismissed, as no appeal lies from an order denying reargument; and it is further,

Ordered that the order dated February 19, 2003, is affirmed; and it is further,

Ordered that one bill of costs is awarded to the defendants.

[671]*671The record supports the Supreme Court’s determination that the plaintiff failed to state a cause of action to recover damages for malicious prosecution (see Johnson v Kings County Dist. Attorney’s Off., 308 AD2d 278 [2003]) and abuse of process (see Hauser v Bartow, 273 NY 370 [1937]). Accordingly, those causes of action were properly dismissed.

The plaintiffs motion, characterized as one for leave to renew and reargue, was not based upon new facts which were unavailable to him at the time he submitted his opposition to the defendants’ motion to dismiss the complaint (see Elias v Grossman, 306 AD2d 432 [2003]). Moreover, the plaintiff failed to offer a valid excuse why the additional evidence upon which he relied was not previously submitted (see Bossio v Fiorillo, 222 AD2d 476 [1995]). Therefore, the motion for leave to renew and reargue was, in fact, a motion for leave to reargue, the denial of which is not appealable (see CPLR 2221; Elias v Grossman, supra; Bossio v Fiorillo, supra).

The plaintiffs remaining contentions are without merit. H. Miller, J.P, Luciano, Schmidt and Townes, JJ., concur.

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Bluebook (online)

6 A.D.3d 670, 775 N.Y.S.2d 172, 2004 N.Y. App. Div. LEXIS 4937, Counsel Stack Legal Research, https://law.counselstack.com/opinion/longo-v-county-of-nassau-nyappdiv-2004.

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