OneWest Bank, FSB v. Barbosa

2019 NY Slip Op 3673

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 9, 2019
• Docket: 381620/10 9265 9264
• Status: Published

Opinion

OneWest Bank, FSB v Barbosa (2019 NY Slip Op 03673)

OneWest Bank, FSB v Barbosa

2019 NY Slip Op 03673

Decided on May 9, 2019

Appellate Division, First Department

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

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

Decided on May 9, 2019
Sweeny, J.P., Gische, Tom, Gesmer, Singh, JJ.

381620/10 9265 9264

[*1]OneWest Bank, FSB, Plaintiff-Appellant,

v

Edgar Barbosa, et al., Defendants-Respondents, New York State Department of Taxation and Finance, et al., Defendants.

Leopold & Associates, PLLC, Armonk (Shawn A. Brenhouse of counsel), for appellant.

Brian McCaffrey, Jamaica, for respondents.

Order, Supreme Court, Bronx County (Howard H. Sherman, J.), entered on or about July 24, 2017, which denied plaintiff's motion to vacate a March 1, 2017 order dismissing the action as against defendant Edgar Barbosa without prejudice, to restore the action to the active calendar, and to extend the time for plaintiff to effectuate service upon Barbosa pursuant to CPLR 306-b, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered on or about April 19, 2018, which denied plaintiff's motion to reargue the July 2017 order, unanimously dismissed, without costs, as taken from an nonappealable paper.

The court dismissed the action as against Barbosa in March 2017, but plaintiff did not move until June to extend the time to serve him. As the court correctly found in the July 2017 order, "once the action was dismissed, plaintiff could no longer seek an extension of time to effect service" (Jimenez v City of New York, 13 AD3d 107 [1st Dept 2004]; see also Sottile v Islandia Home for Adults, 278 AD2d 482, 483 [2d Dept 2000]). Instead of simply opposing Barbosa's July 2016 motion to dismiss for lack of proper service, plaintiff should have — at least in the alternative — cross-moved to extend the time to serve him (see Sottile, 278 AD2d at 484).

As for the 2018 order, "[n]o appeal lies from an order denying reargument" (Matter of Bianca v Frank, 55 AD2d 642, 643 [2d Dept 1976], affd on other grounds 43 NY2d 168 [1977]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 9, 2019

CLERK