Wheel Chair Home, Inc. v. Savage

222 A.D.2d 1014, 636 N.Y.S.2d 527, 1995 N.Y. App. Div. LEXIS 14053

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 22, 1995
• Docket: Appeal No. 1
• Status: Published

Opinion

—Appeal unanimously dismissed without costs. Memorandum: Plaintiff sued defendants for nursing care services rendered to defendant Mary Savage. Mary died after commencement of the action, but no personal representative was appointed for her estate

and no substitution was made as required by CPLR 1015. Defendant James Savage, her son, had power of attorney for her. At the end of plaintiffs case, Supreme Court granted defendants’ motion to dismiss the complaint for failure to prove a prima facie case. Judgment was entered dismissing the complaint against both defendants; no appeal from that judgment was taken and it is not before us. Thereafter, plaintiff made two motions for reargument of the motion to dismiss, seeking a judgment against Mary or a new trial in the first motion, and a judgment against both Mary and James or a new trial in the second motion. Plaintiff appeals from the orders denying those motions. Although this Court would normally hold the appeals and direct substitution of a personal representative for Mary’s estate, in the interest of judicial economy we dismiss the appeals because orders denying motions for reargument are not appealable (see, Empire Ins. Co. v Food City, 167 AD2d 983, 984). That would be the result even if substitution as required by CPLR 1015 were made. (Appeal from Order of Supreme Court, Erie County, Notaro, J. — Reargument.) Present — Pine, J. P., Fallon, Wesley, Balio and Boehm, JJ.