Seltzer v. City of New York

288 A.D.2d 207, 732 N.Y.S.2d 364, 2001 N.Y. App. Div. LEXIS 10429

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 5, 2001
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Taylor, J.), dated July 11, 2000, which denied her motion, in effect, for leave to reargue a prior order of the same court, dated September 29, 1999, which, inter alia, granted the defendants’ separate motions for summary judgment dismissing the complaint.

Ordered that the appeal is dismissed, with one bill of costs payable to the respondents appearing separately and filing separate briefs.

The plaintiff’s motion was improperly designated as one for leave to renew and reargue. Since the evidence upon which renewal was sought was available to the plaintiff at the time when she submitted her opposition to the original motions for summary judgment, it did not constitute a proper ground for renewal. Thus, the motion was for leave to reargue (see, CPLR 2221; Santana v Sterling, 278 AD2d 219; Kirkpatrick v State Farm Fire & Cas. Co., 255 AD2d 363), the denial of which is not appealable (see, Haggerty v Agawam Realty, 271 AD2d 408).

We further note that by decision and order of this Court dated September 15, 2000, the plaintiff’s appeal from the order dated September 29, 1999, was dismissed for failure to prosecute. The dismissal constituted an adjudication on the merits with respect to all issues which could have been reviewed therein, thus precluding review at this time (see, Rubeo v National Grange Mut. Ins. Co., 93 NY2d 750; Bray v Cox, 38 NY2d 350; Gammal v La Casita Milta, 278 AD2d 364; Matter of Keenan v Albert, 273 AD2d 388). Ritter, J. P., Santucci, Feuerstein and Adams, JJ., concur.