Opinion
March 22, 1999
Appeal from the Supreme Court, Nassau County (Franco, J.).
Ordered that the appeal from the order dated December 12, 1996, is dismissed, without costs or disbursements, as it is not appealable as of right ( see, CPLR 5701), and leave to appeal has not been granted; and it is further,
Ordered that the appeal from the order dated March 23, 1998, is dismissed, without costs or disbursements, as no appeal lies from an order denying reargument; and it is farther,
Ordered that the order dated January 14, 1998, is modified, on the law, by deleting the provision thereof granting the defendant's cross motion to dismiss and substituting therefor a provision denying the cross motion; as so modified, the order is affirmed, without costs or disbursements.
The plaintiff's action should not have been dismissed pursuant to CPLR 3216. The plaintiff alleges, without contradiction, that he was not present at the preliminary conference and that he was not aware of the order dated December 12, 1996, directing him to file a note of issue until he received the order dated January 14, 1998, dismissing the complaint ( see, Chase v. Scavuzzo, 87 N.Y.2d 228, 233; Fernandez v. Minsky, 242 A.D.2d 665; cf., Longacre Corp. v. Better Hosp. Equip. Corp., 228 A.D.2d 653).
However, contrary to the plaintiff's claim, the court did not err in denying his motion for summary judgment, since that motion was for the same relief as was sought in a prior motion which was denied by the Supreme Court and affirmed by this Court ( see, Jacobs v. Cirnigliaro, 221 A.D.2d 319). No new proof was submitted to support a subsequent request for the same relief. Thus the court properly imposed a sanction on the plaintiff since the instant motion for summary judgment was frivolous.
Santucci, J. P., Krausman, Goldstein and Luciano, JJ., concur.