Hoover v. Derry

Jan 8, 2004
Versions:3 A.D.3d 659
769 N.Y.S.2d 914
2004 N.Y. App. Div. LEXIS 107
Mugglin, J.

Appeal from an order of the Supreme Court (Connor, J.), entered October 21, 2002 in Ulster County, which, in a proceeding pursuant to CPLR article 78, denied petitioner’s motion for reconsideration.

Following Supreme Court’s dismissal of this proceeding for lack of jurisdiction due to petitioner’s failure to comply with CPLR 304, petitioner moved pursuant to CPLR 2221 (a) to “modify” the order, requesting reinstatement of the proceeding nunc pro tunc principally on grounds of law office failure. Supreme Court denied the motion, characterizing it as one for reargument. Petitioner appeals from this order.

The motion to “modify” the prior order clearly sought to convince Supreme Court that its original determination was incorrect, and was properly considered one to reargue (see Carota v Wu, 284 AD2d 614, 617 [2001]). It is well settled that an order denying a motion to reargue is not appealable (see Davis v Evan, 304 AD2d 1023, 1026 n [2003]; Ault v Richman, 299 AD2d 613, 615 [2002]; Patterson v Palmieri, 284 AD2d 852, 852 [2001]; Flax v Standard Sec. Life Ins. Co. of N.Y., 150 AD2d 894, 895 [1989]).

Mercure, J.P., Crew III, Peters and Lahtinen, JJ., concur. Ordered that the appeal is dismissed, without costs.