Opinion
995 CA 13-02254.
10-03-2014
MIDFIRST BANK, Plaintiff–Appellant, v. Gabriel B. STORTO, Defendant–Respondent, et al., Defendants.
Frenkel Lambert Weiss Weisman & Gordon, LLP, Bay Shore (Michelle MacCagnano of Counsel), for Plaintiff–Appellant.
Frenkel Lambert Weiss Weisman & Gordon, LLP, Bay Shore (Michelle MacCagnano of Counsel), for Plaintiff–Appellant.
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, and VALENTINO, JJ.
Opinion
MEMORANDUM:
Although plaintiff has denominated the motion giving rise to the order and judgment on appeal as a motion to vacate the order and judgment of dismissal previously issued by Supreme Court, we conclude from the papers submitted in support of the motion that it was actually a motion for leave to reargue a prior motion to vacate the order and judgment of dismissal (see Britt v. Buffalo Mun. Hous. Auth., 115 A.D.3d 1252, 1252, 982 N.Y.S.2d 649 ; Cronin v. Hudson Chelsea Assoc., LLC, 68 A.D.3d 913, 913–914, 892 N.Y.S.2d 422 ). “Although this second motion allegedly presented new legal arguments, no excuse was offered as to why these additional arguments could not have been presented in connection with [plaintiff's] earlier motion to vacate,” the motion was in effect a motion for leave to reargue, and no appeal lies from an order denying such a motion (Glowacki v. Szatkowski, 198 A.D.2d 264, 264–265, 604 N.Y.S.2d 812 ). We therefore conclude that plaintiff's appeal must be dismissed (see CPLR 5701[a][2] [viii] ; Hilliard v. Highland Hosp., 88 A.D.3d 1291, 1292–1293, 930 N.Y.S.2d 390 ; Cronin, 68 A.D.3d at 914, 892 N.Y.S.2d 422 ).
It is hereby ORDERED that said appeal is unanimously dismissed without costs.