Psomatithis v. Transoceanic Cable Ship Co.

Appellate Division of the Supreme Court of New York

Psomatithis v. Transoceanic Cable Ship Co.

39 A.D.3d 837, 834 N.Y.S.2d 318

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

DecidedApril 24, 2007

StatusPublished

Cited by8 cases

This text of 39 A.D.3d 837 (Psomatithis v. Transoceanic Cable Ship Co.) 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.

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Psomatithis v. Transoceanic Cable Ship Co., 39 A.D.3d 837, 834 N.Y.S.2d 318 (N.Y. Ct. App. 2007).

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Opinion

In an action, [838]*838inter alia, to recover damages for personal injuries pursuant to the Jones Act (46 USC Appendix § 688), the plaintiff appeals from (1) an order of the Supreme Court, Kings County (HurkinTorres, J.), dated December 22, 2005, which denied his motion, in effect, to vacate his default and to restore the action to the trial calendar, and (2) an order of the same court dated April 19, 2006, which denied his motion, denominated as one for leave to renew and reargue, but which was, in actuality, for leave to reargue his prior motion.

Ordered that the appeal from the order dated April 19, 2006, is dismissed; and it is further,

Ordered that the order dated December 22, 2005, is affirmed; and it is further,

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

An action dismissed pursuant to 22 NYCRR 202.27 (b) may be restored if the plaintiff demonstrates both a reasonable excuse for the default and a meritorious cause of action (see Jones v New York City Hous. Auth., 13 AD3d 489 [2004]; Kandel v Hoffman, 309 AD2d 904, 905 [2003]). Since the plaintiff failed to demonstrate that he had a reasonable excuse for the default and a meritorious cause of action, the Supreme Court properly denied the plaintiffs motion, in effect, to vacate his default and to restore the action to the trial calendar (see CPLR 5015 [a]; Echevarria v Waters, 8 AD3d 330 [2004]).

The plaintiffs subsequent motion, denominated as one for leave to renew and reargue, was not based on new evidence that was unavailable to him at the time of the original motion. Thus, the subsequent motion was, in actuality, one for leave to reargue, the denial of which is not appealable (see Matter of Phillips v Goord, 16 AD3d 422 [2005]; Meehan v David J. Hodder & Son, Inc., 13 AD3d 593 [2004]). Schmidt, J.P., Santucci, Krausman and Covello, JJ., concur.

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In an action, [838]*838inter alia, to recover damages for personal injuries pursuant to the Jones Act (46 USC Appendix § 688), the plaintiff appeals from (1) an order of the Supreme Court, Kings County (HurkinTorres, J.), dated December 22, 2005, which denied his motion, in effect, to vacate his default and to restore the action to the trial calendar, and (2) an order of the same court dated April 19, 2006, which denied his motion, denominated as one for leave to renew and reargue, but which was, in actuality, for leave to reargue his prior motion.

Ordered that the appeal from the order dated April 19, 2006, is dismissed; and it is further,

Ordered that the order dated December 22, 2005, is affirmed; and it is further,

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

An action dismissed pursuant to 22 NYCRR 202.27 (b) may be restored if the plaintiff demonstrates both a reasonable excuse for the default and a meritorious cause of action (see Jones v New York City Hous. Auth., 13 AD3d 489 [2004]; Kandel v Hoffman, 309 AD2d 904, 905 [2003]). Since the plaintiff failed to demonstrate that he had a reasonable excuse for the default and a meritorious cause of action, the Supreme Court properly denied the plaintiffs motion, in effect, to vacate his default and to restore the action to the trial calendar (see CPLR 5015 [a]; Echevarria v Waters, 8 AD3d 330 [2004]).

The plaintiffs subsequent motion, denominated as one for leave to renew and reargue, was not based on new evidence that was unavailable to him at the time of the original motion. Thus, the subsequent motion was, in actuality, one for leave to reargue, the denial of which is not appealable (see Matter of Phillips v Goord, 16 AD3d 422 [2005]; Meehan v David J. Hodder & Son, Inc., 13 AD3d 593 [2004]). Schmidt, J.P., Santucci, Krausman and Covello, JJ., concur.

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39 A.D.3d 837, 834 N.Y.S.2d 318, Counsel Stack Legal Research, https://law.counselstack.com/opinion/psomatithis-v-transoceanic-cable-ship-co-nyappdiv-2007.

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