Poulard v. Judkins

102 A.D.3d 665, 956 N.Y.S.2d 916

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 9, 2013
• Status: Published

Opinion

In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Bayne, J.), dated September 9, 2011, which denied her motion, denominated as one for leave to renew and reargue, but which was, in actuality, one for leave to reargue her opposition to the defendants’ motion to dismiss the complaint pursuant to CFLR 3211 (a) (1), which had been granted in an order of the same court dated February 11, 2010.

Ordered that the appeal is dismissed, with costs.

The plaintiffs motion, denominated as one for leave to renew and reargue, did not offer any new facts not offered in support of the plaintiffs opposition to the defendants’ motion pursuant to CFLR 3211 (a) (1) to dismiss the complaint based on documentary evidence. Therefore, the motion, though denominated as one for leave to renew and reargue, was, in actuality, one only for leave to reargue, the denial of which is not appeal-able (see CPLR 2221 [d] [2]; [e] [2]; Strunk v Revenge Cab Corp., 98 AD3d 1030, 1031 [2012]; Blackwell v Mikevin Mgt. III, LLC, 88 AD3d 836, 838 [2011]). Accordingly, the appeal must be dismissed. Angiolillo, J.P., Dickerson, Hall and Austin, JJ., concur.