Opinion
Submitted June 6, 2001.
June 25, 2001.
In an action to recover damages for personal injuries, the plaintiffs appeal from (1) an order of the Supreme Court, Kings County (Dowd, J.), dated July 26, 2000, which denied their motion for leave to reargue the defendants' prior motion for summary judgment, and (2), an order of the same court, dated February 21, 2001, which denied their motion, denominated as one pursuant to CPLR 5015(a)(1), but which, in actuality, was for leave to reargue their prior motion.
Asher Associates, P.C., Staten Island, N.Y. (Robert D. Asher of counsel), for appellants.
Chesney Murphy, LLP, (Lysaght Russo, P.C., Rockville Centre, N Y [Michelle S. Russo] of counsel), for respondents.
Before: FRED T. SANTUCCI, J.P., SONDRA MILLER, DANIEL F. LUCIANO, SANDRA J. FEUERSTEIN, THOMAS A. ADAMS, JJ.
ORDERED that the appeals are dismissed, with one bill of costs.
The Supreme Court denied the plaintiffs' first motion for leave to reargue the defendants' prior motion for summary judgment dismissing the complaint on the ground that none of the plaintiffs sustained a serious injury within the meaning of Insurance Law § 5102(d). Since no appeal lies from an order denying leave to reargue, the appeal from the order dated July 26, 2000, is dismissed (see, Muro v. Bay Ready Mix Supplies, A.D.2d [2d Dept., Apr. 16, 2001]; Privitera v. City of New York, 277 A.D.2d 367; Matter of Thein v. Mamaroneck Union Free School Dist., 231 A.D.2d 730).
The second motion, which was denominated as one pursuant to CPLR 5015(a)(1), was in substance identical to the previous motion for leave to reargue, except that it contained an excuse why the physician's affirmations, submitted for the first time on the first motion for leave to reargue, had not been submitted in opposition to the defendants' motion for summary judgment. Thus, the second motion is, in actuality, one for leave to reargue, and the appeal from the order dated February 21, 2001, is also dismissed (see, Cangro v. Cangro, 272 A.D.2d 286; Mucciola v. City of New York, 177 A.D.2d 553).
SANTUCCI, J.P., S. MILLER, LUCIANO, FEUERSTEIN and ADAMS, JJ., concur.
Cross motion by the respondents on appeals from two orders of the Supreme Court, Kings County, dated July 26, 2000, and February 21, 2001, respectively, inter alia, to dismiss the appeal from the order dated July 26, 2000, on the ground that it denies a motion for leave to reargue and is not appealable. By decision and order of this court dated November 9, 2000, that branch of the cross motion was referred to the Justices hearing the appeals for determination upon the argument or submission thereof.
Upon the papers filed in support of the cross motion and the papers filed in opposition thereto, it is
ORDERED that that branch of the cross motion is denied as academic is light of our determination of the appeal from that order (see, Agayeva v. KJ Shuttle Serv., A.D.2d [decided herewith]).
SANTUCCI, J.P., S. MILLER, LUCIANO, FEUERSTEIN and ADAMS, JJ., concur.