Doctors for Surgery, PLLC v. Aristide

Mar 24, 2021
2019-07577
Versions:192 A.D.3d 991
140 N.Y.S.3d 770
2021 NY Slip Op 01755

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Blackman & Melville, P.C., New York, NY (Denise A. Melville-Blackman of counsel), for appellant.

Lasky & Steinberg, P.C., Garden City, NY (Sean R. Lasky of counsel), for respondent.

DECISION & ORDER

In an action to recover damages for breach of contract, on an account stated, and for an award of attorneys’ fees, the defendant appeals from an order of the Supreme Court, Nassau County (James P. McCormack, J.), entered May 1, 2019. The order, insofar as appealed from, denied that branch of the defendant‘s motion which was for leave to reargue his prior motion to vacate an order of the same court entered June 11, 2018, granting the plaintiff leave to file a default judgment against the defendant, which prior motion had been denied in an order of the same court entered November 14, 2018, and, upon renewal, adhered to the determination in the order entered November 14, 2018.

ORDERED that the appeal from so much of the order entered May 1, 2019, as denied that branch of the defendant‘s motion which was for leave to reargue is dismissed; and it is further,

ORDERED that the order entered May 1, 2019, is affirmed insofar as reviewed; and it is further,

ORDERED that the plaintiff is awarded one bill of costs.

The plaintiff allegedly rendered medical services to the defendant, for which the defendant agreed, in writing, to pay. The plaintiff commenced the instant action against the defendant to recover damages for breach of contract, on an account stated, and for an award of attorneys’ fees. The defendant answered the complaint. On June 6, 2018, the defendant failed to appear for a scheduled compliance conference. Accordingly, by order entered June 11, 2018, the Supreme Court granted the plaintiff leave to file a default judgment against the defendant pursuant to 22 NYCRR 202.27(a). On or about June 20, 2018, the defendant moved pursuant to CPLR 5015(a)(1) to vacate the order entered June 11, 2018. By order entered November 14, 2018, that motion was denied, on the grounds that the defendant failed to demonstrate a reasonable excuse for his default or a potentially meritorious defense.

Thereafter, the defendant moved for leave to renew and reargue his prior motion to vacate the order entered June 11, 2018. By order entered May 1, 2019, that branch of the defendant‘s motion which was for leave to reargue was denied, and upon renewal, the court adhered to the original determination in the order entered November 14, 2018. The defendant appeals.

The appeal from so much of the order entered May 1, 2019, as denied that branch of the defendant‘s motion which was for leave to reargue must be dismissed, as no appeal lies from an order denying reargument (see U.S. Bank N.A. v McCaffrey, 186 AD3d 897, 899).

The alleged new facts presented on that branch of the motion which was for leave to renew did not constitute new facts, and were insufficient to establish a potentially meritorious defense.

Accordingly, upon renewal, the Supreme Court properly adhered to the original determination.

DILLON, J.P., HINDS-RADIX, MILLER and CHRISTOPHER, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court