Stillway v. Guzewicz

Appellate Division of the Supreme Court of New York

Stillway v. Guzewicz

261 A.D.2d 392, 689 N.Y.S.2d 515, 1999 N.Y. App. Div. LEXIS 4504

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

DecidedMay 3, 1999

StatusPublished

Cited by2 cases

This text of 261 A.D.2d 392 (Stillway v. Guzewicz) 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.

Bluebook

Stillway v. Guzewicz, 261 A.D.2d 392, 689 N.Y.S.2d 515, 1999 N.Y. App. Div. LEXIS 4504 (N.Y. Ct. App. 1999).

Pincite

Opinion

—In a matrimonial action in which the parties were divorced by judgment entered April 13, 1995, the defendant father appeals, as limited by his brief, from stated portions of an order of the Supreme Court, Nassau County (Warshawsky, J.), dated March 9, 1998, which, inter alia, (1) denied that branch of his motion which was, in effect, for reargument of an order of the same court (O’Brien, J.), dated December 18,1997, which, among other things, denied so much of his motion as sought a change of custody, and (2) denied that branch of his motion which was to enjoin the plaintiff mother from relocating with the parties’ infant child pending the determination of so much of his motion as was, in effect, for reargument.

Ordered that the appeal from so much of the order as denied [393]*393that branch of the motion of the defendant father which was, in effect, for reargument, is dismissed, as no appeal lies from an order denying reargument; and it is further,

Ordered that the appeal from so much of the order as denied that branch of the motion which was to enjoin the plaintiff mother from relocating with the parties’ infant child pending the determination of so much of the motion as was, in effect, for reargument is dismissed as academic; and it is further,

Ordered that the respondent is awarded one bill of costs.

That branch of the defendant’s motion which was denominated as being for renewal and reargument was, in effect, for reargument, since the purportedly new facts were either not material, or the defendant failed to offer a reasonable excuse as to why they were not submitted at the time of the original motion (see, Roman v Konis, 254 AD2d 269; Schumann v City of New York, 242 AD2d 616; Foley v Roche, 68 AD2d 558). Consequently, the appeal from so much of the order as denied that branch of the defendant’s motion which was, in effect, for reargument is dismissed, as an order denying reargument is not appealable.

Moreover, the appeal from so much of the order as denied that branch of the defendant’s motion which was to enjoin the plaintiff mother from relocating with the parties’ infant child pending the determination of that part of his motion which was, in effect, for reargument, must be dismissed as academic, as reargument has been denied (see, Matter of Anonymous [Boggs] v New York City Health & Hosps. Corp., 70 NY2d 972; Matter of McClure v McClure, 176 AD2d 325). Bracken, J. P., Thompson, Goldstein and Florio, JJ., concur.

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—In a matrimonial action in which the parties were divorced by judgment entered April 13, 1995, the defendant father appeals, as limited by his brief, from stated portions of an order of the Supreme Court, Nassau County (Warshawsky, J.), dated March 9, 1998, which, inter alia, (1) denied that branch of his motion which was, in effect, for reargument of an order of the same court (O’Brien, J.), dated December 18,1997, which, among other things, denied so much of his motion as sought a change of custody, and (2) denied that branch of his motion which was to enjoin the plaintiff mother from relocating with the parties’ infant child pending the determination of so much of his motion as was, in effect, for reargument.

Ordered that the appeal from so much of the order as denied [393]*393that branch of the motion of the defendant father which was, in effect, for reargument, is dismissed, as no appeal lies from an order denying reargument; and it is further,

Ordered that the appeal from so much of the order as denied that branch of the motion which was to enjoin the plaintiff mother from relocating with the parties’ infant child pending the determination of so much of the motion as was, in effect, for reargument is dismissed as academic; and it is further,

Ordered that the respondent is awarded one bill of costs.

That branch of the defendant’s motion which was denominated as being for renewal and reargument was, in effect, for reargument, since the purportedly new facts were either not material, or the defendant failed to offer a reasonable excuse as to why they were not submitted at the time of the original motion (see, Roman v Konis, 254 AD2d 269; Schumann v City of New York, 242 AD2d 616; Foley v Roche, 68 AD2d 558). Consequently, the appeal from so much of the order as denied that branch of the defendant’s motion which was, in effect, for reargument is dismissed, as an order denying reargument is not appealable.

Moreover, the appeal from so much of the order as denied that branch of the defendant’s motion which was to enjoin the plaintiff mother from relocating with the parties’ infant child pending the determination of that part of his motion which was, in effect, for reargument, must be dismissed as academic, as reargument has been denied (see, Matter of Anonymous [Boggs] v New York City Health & Hosps. Corp., 70 NY2d 972; Matter of McClure v McClure, 176 AD2d 325). Bracken, J. P., Thompson, Goldstein and Florio, JJ., concur.

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Bluebook (online)

261 A.D.2d 392, 689 N.Y.S.2d 515, 1999 N.Y. App. Div. LEXIS 4504, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stillway-v-guzewicz-nyappdiv-1999.

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