Friday, October 30, 2015

Leave to renew and reargue.

Practice point:  Respondent moved to dismiss the appeal on the ground that there is no appeal from an order denying reargument. Upon the papers filed in support of the motion, the papers filed in opposition thereto, and upon the submission of the appeal, the Appellate Division granted the motion to dismiss the appeal, and the appeal was dismissed.  The Appellate Division found that, while the appeal was of a motion denominated as one for leave to renew and reargue, it was, in actuality, only for leave to reargue, the denial of which is not appealable, pursuant to CPLR 2221[d][2] and [e][2].

Student note:  Regardless of how it was denominated, appellant's motion, was not for leave to renew and reargue, as it did not offer any new facts that had not been offered on her prior motion for summary judgment dismissing the complaint insofar as against her.

Case:  Arch Bay Holdings, LLC-Series 2010C v. Daisy, NY Slip Op 07606 (2d Dept. 2015)

Here is the decision.

Monday's issue:  Dismissal with another action pending.