Scott v. Avis Rent A Car, Inc.

289 A.D.2d 471, 735 N.Y.S.2d 412, 2001 N.Y. App. Div. LEXIS 13010

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 24, 2001
• Status: Published

Opinion

In an action to recover damages for personal injuries, the defendant appeals (1), as limited by its brief, from so much of an order of the Supreme Court, Nassau County (McCarty, J.), dated September 29,1999, as, sua sponte, vacated a prior order of the same court, dated October 1, 1998, granting its motion to change the venue of the action from Kings County to Nassau County, and (2) from an order of the same court, dated January 12, 2001, which denied the defendant’s motion, in effect, for leave to reargue.

Ordered that the appeal from the order dated September 29, 1999, is dismissed as no appeal lies as of right from a sua sponte order, and leave to appeal has not been granted (see, CPLR 5701 [c]); and it is further,

Ordered that the appeal from the order dated January 12, 2001, is dismissed as no appeal lies from an order denying re-argument (see, Holmes v Hanson, 286 AD2d 750); and it is further,

Ordered that the plaintiff is awarded one bill of costs.

While the defendant denominated its motion as one for reargument and renewal, it was properly treated as one solely for reargument because no new evidence was submitted and there was no adequate explanation for its failure to submit the purportedly new evidence at the time of the prior motion (see, CPLR 2221 [e]; Quog v Town of Brookhaven, 286 AD2d 678; Delvecchio v Bayside Chrysler Plymouth Jeep Eagle, 271 AD2d 636). Therefore, the appeal must be dismissed. O’Brien, J. P., Santucci, H. Miller and Cozier, JJ., concur.