Hoffeld v. Lindholm

Jun 23, 2011
Versions:85 A.D.3d 635
925 N.Y.S.2d 819

Appeal from order, Supreme Court, New York County (Milton A. Tingling, J.), entered September 13, 2010, which denied plaintiffs’ motion for leave to reargue the denial of summary judgment on their claims for breach of contract and account stated, unanimously dismissed, without costs, as nonappealable.

We conclude that despite plaintiffs’ denomination in their notice of motion, the motion at issue was one for reargument (see Fontanez v St. Barnabas Hosp., 24 AD3d 218 [2005]). The denial of a motion for reargument is not appealable (Rosen v Rosenholc, 303 AD2d 230 [2003]).

Were we to consider the merits of plaintiffs’ underlying motion, we would find that plaintiffs have violated the rule against successive summary judgment motions (Jones v 636 Holding Corp., 73 AD3d 409, 409 [2010]). Furthermore, denial of summary judgment on all claims would be appropriate due to remaining material issues of fact requiring trial (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

We have considered plaintiffs’ remaining arguments and find them unavailing. Concur—Saxe, J.P., Sweeny, Catterson, Freedman and Manzanet-Daniels, JJ.