Mrkulic v. Peters

Opinion

Mrkulic v Peters

2026 NY Slip Op 04499

July 22, 2026

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This decision is uncorrected and subject to revision before publication in the Official Reports.

Samir Mrkulic, respondent,

v

George T. Peters, et al., appellants.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on July 22, 2026

2023-09857, 2023-10868, (Index No. 505025/20)

Francesca E. Connolly, J.P.

Valerie Brathwaite Nelson

Barry E. Warhit

Elena Goldberg Velazquez, JJ.

Law Office of George T. Peters, PLLC, New York, NY, appellant pro se and for appellant George T. Peters.

Cannata, Hendele & Cannata, LLP, New York, NY (Gregory J. Cannata of counsel), for respondent.

[*1]

DECISION & ORDER

In an action to recover damages for legal malpractice, the defendants appeal from (1) an order of the Supreme Court, Kings County (Debra Silber, J.), dated August 8, 2023, and (2) a judgment of the same court dated August 23, 2023. The order granted the plaintiff's motion for leave to reargue his opposition to the defendants' prior motion pursuant to CPLR 5015 to vacate an order of the same court (Richard Velasquez, J.) dated March 1, 2022, granting the plaintiff's unopposed motion for leave to enter a default judgment against the defendants, which had been granted in an order of the same court (Debra Silber, J.) dated March 30, 2023, and, upon reargument, vacated so much of the order dated March 30, 2023, as granted the defendants' prior motion and directed that the defendants' answer be considered timely served and filed, reinstated the order dated March 1, 2022, and thereupon, in effect, denied the defendants' prior motion. The judgment, upon the order dated August 8, 2023, is in favor of the plaintiff and against the defendants in the principal sum of $255,405.86.

ORDERED that the appeal from the order dated August 8, 2023, is dismissed; and it is further,

ORDERED that the judgment is reversed, on the law and in the exercise of discretion, the plaintiff's motion for leave to reargue his opposition to the defendants' prior motion pursuant to CPLR 5015 to vacate the order dated March 1, 2022, is denied, so much of the order dated March 30, 2023, as granted the defendants' prior motion and directed that the defendants' answer be considered timely served and filed is reinstated, and the order dated August 8, 2023, is modified accordingly; and it is further,

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

The appeal from the order dated August 8, 2023, must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment in the action (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from that order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1]; Matter of Aho, 39 [*2]NY2d at 248).

The plaintiff commenced this action to recover damages for legal malpractice. In an order dated March 1, 2022, the Supreme Court granted the plaintiff's unopposed motion for leave to enter a default judgment against the defendants and directed the entry of a money judgment in favor of the plaintiff and against the defendants in the amount demanded in the complaint. The defendants moved pursuant to CPLR 5015 to vacate the order dated March 1, 2022, and the plaintiff opposed the motion. In an order dated March 30, 2023, the court, inter alia, granted the defendants' motion and directed that the defendants' answer be considered timely served and filed. The plaintiff moved for leave to reargue his opposition to the defendants' prior motion to vacate the order dated March 1, 2022. In an order dated August 8, 2023, the court granted the plaintiff's motion for leave to reargue and, upon reargument, vacated so much of the order dated March 30, 2023, as granted the defendants' prior motion to vacate the order dated March 1, 2022, and directed that the defendants' answer be considered timely served and filed, reinstated the order dated March 1, 2022, and thereupon, in effect, denied the defendants' prior motion. A judgment dated August 23, 2023, upon the order dated August 8, 2023, was issued in favor of the plaintiff and against the defendants in the principal sum of $255,405.86. The defendants appeal.

A motion for leave to reargue "shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion" (CPLR 2221[d][2]). While the determination to grant leave to reargue lies within the sound discretion of the court (see Garcia v Cali CW Realty Assoc., L.P., 230 AD3d 1231, 1232), a motion for leave to reargue "is not designed to provide an unsuccessful party with successive opportunities to reargue issues previously decided, or to present arguments different from those originally presented" (McGill v Goldman, 261 AD2d 593, 594; see Wells Fargo Bank, N.A. v Weiss, 237 AD3d 1003, 1005; Emigrant Bank v Kaufman, 223 AD3d 650, 652).

Here, the Supreme Court improvidently exercised its discretion in granting the plaintiff's motion for leave to reargue, since the plaintiff failed to demonstrate that the court overlooked or misapprehended the relevant facts or misapplied any controlling principle of law (see Garcia v Cali CW Realty Assoc., L.P., 230 AD3d at 1232; Degraw Constr. Group, Inc. v McGowan Bldrs., Inc., 178 AD3d 772, 773).

CONNOLLY, J.P., BRATHWAITE NELSON, WARHIT and GOLDBERG VELAZQUEZ, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court