Schoenfeld v. Shonfeld

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

Nov 22, 1999

Versions:266 A.D.2d 449

698 N.Y.S.2d 863

1999 N.Y. App. Div. LEXIS 12085

—In an action pursuant to CPLR 3213 for summary judgment in lieu of complaint, the defendant appeals from (1) an order of the Supreme Court, Nassau County (Schmidt, J.), dated June 9, 1998, which granted the plaintiffs motion and denied his cross motion for summary judgment dismissing the complaint, and (2) an order of the same court, dated October 29, 1998, which denied his motion, in effect, for reargument.

Ordered that the appeal from the order dated October 29, 1998, is dismissed, as no appeal lies from an order denying re-argument; and it is further,

Ordered that the order dated June 9, 1998, is modified by deleting the provision thereof granting the plaintiff’s motion for summary judgment in lieu of a complaint, and substituting therefor a provision denying that motion; as so modified, the order dated June 9, 1998, is affirmed; and it is further,

Ordered that the defendant is awarded one bill of costs.

Since the defendant’s motion, denominated as one for renewal and reargument, was not based upon new evidence which was unavailable at the time of the original motion, the motion was actually one for reargument (see, Citibank v Olson, 204 AD2d 381; Chiarella v Quitoni, 178 AD2d 502). Therefore, the appeal from the denial of that motion must be dismissed, as no appeal lies from an order denying reargument (see, Schumer v Levine, 208 AD2d 605; DeFreitas v Board of Educ., 129 AD2d 672).

The court erred when it granted the plaintiffs motion for summary judgment in lieu of complaint, as issues of fact exist as to whether the plaintiff disposed of the defendant’s collateral in a commercially-reasonable manner, and whether the promissory notes at issue were given for valid consideration *450(see, Ford Motor Credit Co. v Hernandez, 210 AD2d 656; BancAmerica Private Brands v Marine Gallery, 157 AD2d 813; Mack Fin. Corp. v Knoud, 98 AD2d 713, 714). Bracken, J. P., S. Miller, Thompson and Friedmann, JJ., concur.