Southampton Brick & Tile, LLC v. Suffolk County National Bank

68 A.D.3d 880, 889 N.Y.2d 473

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 8, 2009
• Status: Published

Opinion

The appeal from so much of the order dated January 16, 2009, as denied that branch of the appellant’s motion which was for leave to reargue must be dismissed, as no appeal lies from an order denying reargument. The appeal from the remainder of the order dated January 16, 2009, is dismissed as academic in light of our determination on the appeal from the order dated August 5, 2008.

Contrary to the Supreme Court’s determination, the petitioner established that it properly commenced this proceeding by submitting a copy of the petition annexed to the order to show cause, which was date stamped by the Suffolk County Clerk on April 30, 2008 (see CPLR 304; Matter of Alexy v Otte, 58 AD3d 967, 968 [2009]; Matter of Correnti v Suffolk County Dist. Attorney’s Off, 34 AD3d 578, 579-580 [2006]). Accordingly, the Supreme Court should not have dismissed the proceeding for noncompliance with CPLR 304.

As the parties did not litigate the merits of the petition, the matter must be remitted to Supreme Court, Suffolk County, for that purpose.

Further, as it is undisputed that notice of this proceeding was not served upon the debtors and the Sheriff (see CPLR 6214 [d]), the petitioner should cure the defect by serving them with notice of the proceeding (see Banco Popular N. Am. v Philian Designs LLC, 48 AD3d 368, 369 [2008]).

In light of our determination, we need not reach the petitioner’s remaining contentions. Mastro, J.P., Florio, Balkin and Leventhal, JJ., concur.