Toussaint v. Divine Bros.

Appellate Division of the Supreme Court of New York

Toussaint v. Divine Bros.

280 A.D.2d 664, 721 N.Y.S.2d 246, 2001 N.Y. App. Div. LEXIS 1826

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

DecidedFebruary 26, 2001

StatusPublished

This text of 280 A.D.2d 664 (Toussaint v. Divine Bros.) 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

Toussaint v. Divine Bros., 280 A.D.2d 664, 721 N.Y.S.2d 246, 2001 N.Y. App. Div. LEXIS 1826 (N.Y. Ct. App. 2001).

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Opinion

—In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (R. Goldberg, J.), dated April 10, 2000, which denied his motion, denominated as one for renewal and reargument, but which was, in fact, to reargue, inter alia, a prior motion of the defendant third-party plaintiff to dismiss the action and his cross motion to restore the action to the calendar.

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

The plaintiffs motion, denominated as one for renewal and reargument of, inter alia, the prior motion of the defendant third-party plaintiff to dismiss the complaint and his cross motion to restore the action to the calendar, was based on, among other things, allegedly new evidence consisting of the affidavit of an engineering expert. The Supreme Court properly found that the motion was merely, in effect, to reargue, as it was not [665]*665based upon new facts that were unavailable at the time the plaintiff submitted his earlier cross motion to restore the action (see, Bossio v Fiorillo, 222 AD2d 476). No appeal lies from an order denying a motion to reargue (see, King v Rockaway One Co., 202 AD2d 395; Chiarella v Quitoni, 178 AD2d 502). O’Brien, J. P., Friedmann, Goldstein and Smith, JJ., concur.

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—In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (R. Goldberg, J.), dated April 10, 2000, which denied his motion, denominated as one for renewal and reargument, but which was, in fact, to reargue, inter alia, a prior motion of the defendant third-party plaintiff to dismiss the action and his cross motion to restore the action to the calendar.

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

The plaintiffs motion, denominated as one for renewal and reargument of, inter alia, the prior motion of the defendant third-party plaintiff to dismiss the complaint and his cross motion to restore the action to the calendar, was based on, among other things, allegedly new evidence consisting of the affidavit of an engineering expert. The Supreme Court properly found that the motion was merely, in effect, to reargue, as it was not [665]*665based upon new facts that were unavailable at the time the plaintiff submitted his earlier cross motion to restore the action (see, Bossio v Fiorillo, 222 AD2d 476). No appeal lies from an order denying a motion to reargue (see, King v Rockaway One Co., 202 AD2d 395; Chiarella v Quitoni, 178 AD2d 502). O’Brien, J. P., Friedmann, Goldstein and Smith, JJ., concur.

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Bluebook (online)

280 A.D.2d 664, 721 N.Y.S.2d 246, 2001 N.Y. App. Div. LEXIS 1826, Counsel Stack Legal Research, https://law.counselstack.com/opinion/toussaint-v-divine-bros-nyappdiv-2001.

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