Nagle v. New York Hotel Trades Council & Hotel Ass'n

68 A.D.2d 905, 414 N.Y.S.2d 211, 1979 N.Y. App. Div. LEXIS 11157

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 12, 1979
• Status: Published

Opinion

In a consolidated action to recover damages for medical malpractice, defendant Malerba appeals from (1) so much of an order of the Supreme Court, Queens County, dated March 1, 1978, as, upon granting his motion to compel plaintiff to appear at an examination before trial, directed that he also appear to be examined and (2) a further order of the same court, dated March 29, 1978, which treated his motion for "renewal and/or re-argument and/or re-settlement” as one for reargument and denied the motion. Appeal from the order dated March 29, 1978 dismissed, without costs or disbursements. No appeal lies from an order denying reargument. Order dated March 1, 1978 reversed insofar as appealed from, without costs or disbursements, and the provision which directed appellant to appear for an examination before trial is deleted. The examination of plaintiff shall proceed at the place designated in the order dated March 1, 1978, at a time to be fixed in a written notice of not less than 10 days, to be given by appellant, or at such other time and place as the parties may agree. Under the circumstances, there was no basis to direct an examination before trial of appellant in the absence of a request for such relief by plaintiff in a cross motion (see Lowenkron v Berkeley Coop. Towers Sec. 11 Corp., 25 AD2d 656). Appellant’s papers on his second motion contained no new facts and it was, therefore, properly denominated a motion for reargument. No appeal lies from the denial of a motion to reargue. Damiani, J. P., Suozzi, Lazer and Rabin, JJ., concur.