Opinion
10071N Index 305579/14
10-10-2019
Kerry SMITH, et al., Plaintiffs–Appellants, v. Lenny E. PEREIRA, Defendant–Respondent, John and Jane Does (1–50), et al., Defendants.
Sekas Law Group, LLC, New York (Nicholas G. Sekas of counsel), for appellants. Law Offices of Jennifer S. Adams, Yonkers (Jeffrey A. Domoto of counsel), for respondent.
Sekas Law Group, LLC, New York (Nicholas G. Sekas of counsel), for appellants.
Law Offices of Jennifer S. Adams, Yonkers (Jeffrey A. Domoto of counsel), for respondent.
Renwick, J.P., Gische, Kapnick, Gesmer, Moulton, JJ.
Appeal from order, Supreme Court, Bronx County (Donna M. Mills, J.), entered on or about July 31, 2018, which, in this action for personal injuries sustained in a motor vehicle accident, denied the motion of plaintiffs for leave to reargue (denominated a motion for leave to renew and reargue) defendant Lenny E. Pereira's motion for summary judgment dismissing the complaint, unanimously dismissed, without costs, as taken from a nonappealable order.
Plaintiffs' motion, denominated as one for leave to renew and reargue, was not based on new facts unavailable at the time of the original motion, and thus was actually a motion for leave to reargue, the denial of which is not appealable ( CPLR 2221[e] ; see Lichtman v. Mount Judah Cemetery , 269 A.D.2d 319, 320, 705 N.Y.S.2d 23 [1st Dept. 2000], lv denied in part and dismissed in part 95 N.Y.2d 860, 714 N.Y.S.2d 704, 737 N.E.2d 946 [2000] ). Plaintiffs cannot show due diligence in attempting to obtain the subject physician's affirmation because they did not submit it until they moved to renew and reargue without explanation despite defendant pointing out in its reply papers that the physician's report was unsworn (see Jones v. 170 E. 92nd St. Owners Corp. , 69 A.D.3d 483, 893 N.Y.S.2d 534 [1st Dept. 2010] ).
Furthermore, inasmuch as no appeal lies from the denial of a motion to reargue, and no appeal has been taken from the original determination granting defendant's motion for summary judgment, plaintiffs' arguments addressed to that determination are not properly before us (see Stratakis v. Ryjov , 66 A.D.3d 411, 411–412, 885 N.Y.S.2d 597 [1st Dept. 2009] ).