Opinion
2018–12208 Index No. 503741/13
08-25-2021
Patricia HINDS, respondent, v. 33RD STREET ASTORIA, INC., appellant, et al., defendants (and a third-Party action).
Rothkrug Rothkrug & Spector, LLP, Great Neck, N.Y. (Simon H. Rothkrug of counsel), for appellant. Boatti PLLC, Brooklyn, N.Y. (Richard Stephen Boatti of counsel), for respondent.
Rothkrug Rothkrug & Spector, LLP, Great Neck, N.Y. (Simon H. Rothkrug of counsel), for appellant.
Boatti PLLC, Brooklyn, N.Y. (Richard Stephen Boatti of counsel), for respondent.
REINALDO E. RIVERA, J.P., SYLVIA O. HINDS–RADIX, ROBERT J. MILLER, PAUL WOOTEN, JJ.
DECISION & ORDER
In an action, inter alia, to recover damages for breach of contract, the defendant 33rd Street Astoria, Inc., appeals from an order of the Supreme Court, Kings County (Larry D. Martin, J.), dated August 22, 2018. The order denied that defendant's motion for leave to reargue its opposition to the plaintiff's motion pursuant to CPLR 3126 to strike that defendant's answer and for leave to enter a default judgment against that defendant, which was granted in an order of the same court (Arthur M. Schack, J.) dated February 22, 2016, and, in the alternative, pursuant to CPLR 5015(a)(1) to vacate the order dated February 22, 2016.
ORDERED that the appeal from so much of the order dated August 22, 2018, as denied that branch of the motion of the defendant 33rd Street Astoria, Inc., which was for leave to reargue is dismissed, as no appeal lies from an order denying reargument; and it is further,
ORDERED that the order dated August 22, 2018, is affirmed insofar as reviewed; and it is further;
ORDERED that one bill of costs is awarded to the plaintiff.
The plaintiff moved pursuant to CPLR 3126 to strike the appellant's answer and for leave to enter a default judgment against the appellant based on the appellant's willful noncompliance with court-ordered discovery. The appellant opposed the motion. In an order dated February 22, 2016, the Supreme Court granted the plaintiff's motion. In March 2018, the appellant moved for leave to reargue its opposition to the plaintiff's motion and, alternatively, pursuant to CPLR 5015(a)(1) to vacate the February 22, 2016 order. In the order appealed from, the court denied the appellant's motion.
The Supreme Court properly denied that branch of the appellant's motion which was pursuant to CPLR 5015(a)(1) to vacate the February 22, 2016 order. Since the plaintiff's motion pursuant to CPLR 3126 to strike the appellant's answer and for leave to enter a default judgment against the appellant was opposed on the merits by the appellant, the order granting that motion was appealable, and the appellant's motion pursuant to CPLR 5015(a)(1) to vacate it was procedurally improper (see Cole–Hatchard v. Eggers, 132 A.D.3d 718, 719, 18 N.Y.S.3d 100 ; Pinapati v. Pagadala, 244 A.D.2d 676, 664 N.Y.S.2d 161 ; Pergamon Press v. Tietze, 81 A.D.2d 831, 438 N.Y.S.2d 831 ).
RIVERA, J.P., HINDS–RADIX, MILLER and WOOTEN, JJ., concur.