Opinion
2018–07444 Index No. 454/15
09-15-2021
Nazia KHAN, etc., appellant, v. Zafar KHAN, respondent.
Krentsel & Guzman, LLP (Michael H. Zhu, Esq., P.C., New York, NY, of counsel), for appellant. Fishman & Tynan, Merrick, N.Y. (John Fishman of counsel), for respondent.
Krentsel & Guzman, LLP (Michael H. Zhu, Esq., P.C., New York, NY, of counsel), for appellant.
Fishman & Tynan, Merrick, N.Y. (John Fishman of counsel), for respondent.
LEONARD B. AUSTIN, J.P., SYLVIA O. HINDS–RADIX, FRANCESCA E. CONNOLLY, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER In an action, inter alia, to recover damages for negligence and wrongful death, etc., the plaintiff appeals from an order of the Supreme Court, Nassau County (Anna Anzalone, J.), entered April 10, 2018. The order denied the plaintiff's motion for leave to reargue her opposition to that branch of the defendant's prior cross motion which was to preclude the plaintiff from introducing at trial any evidence or testimony regarding or from expert Steven Wagner, which had been granted in an order of the same court dated November 27, 2017. ORDERED that the appeal from the order entered April 10, 2018, is dismissed, with costs.
"The method of service provided for in an order to show cause is jurisdictional in nature and must be strictly complied with" ( U.S. Bank N.A. v. Feliciano, 103 A.D.3d 791, 791, 959 N.Y.S.2d 453 [internal quotation marks omitted]; see City of New York v. Miller, 72 A.D.3d 726, 727, 898 N.Y.S.2d 643 ). Here, the plaintiff moved, inter alia, by order to show cause for leave to reargue her opposition to that branch of the defendant's prior cross motion which was to preclude her from introducing any evidence or testimony regarding or from expert Steven Wagner. The order to show cause provided that the defendant was to be served by overnight mail upon his counsel "on or before the 16th day of January, 2018." Since the affidavit of service demonstrated that the plaintiff did not effectuate service of the order to show cause and supporting papers until January 18, 2018, the Supreme Court correctly determined that the plaintiff failed to serve the defendant in the manner as directed, rendering the court without jurisdiction to consider the plaintiff's motion (see Codrington v. Citimortgage, Inc., 118 A.D.3d 843, 844, 988 N.Y.S.2d 636 ; Matter of Rotanelli v. Board of Elections of Westchester County, 109 A.D.3d 562, 563, 970 N.Y.S.2d 471 ; Crown Waterproofing, Inc. v. Tadco Constr. Corp., 99 A.D.3d 964, 965, 953 N.Y.S.2d 254 ; Lobo v. Soto, 73 A.D.3d 1135, 1136, 900 N.Y.S.2d 900 ). As a matter of procedure, given the fact that the subject order to show cause was not timely served, the court did not have jurisdiction to consider the merits of the motion (see e.g. DelGrosso v. Carroll, 185 A.D.3d 901, 903–904, 128 N.Y.S.3d 269 ). In any event, no appeal lies from an order denying reargument (see Doctors for Surgery, PLLC v. Aristede, 192 A.D.3d 991, 140 N.Y.S.3d 770 ).
In light of our determination, we need not address the remaining contentions.
AUSTIN, J.P., HINDS–RADIX, CONNOLLY and BRATHWAITE NELSON, JJ., concur.