679 Waring Ave. v. Sosa

Full title: 679 Waring Avenue, LLC, Petitioner-Landlord-Respondent, v. Manuel Sosa and…

Court: Supreme Court of New York, First Department

Date published: Jun 26, 2023

2023 N.Y. Slip Op. 50632 (N.Y. App. Term 2023)

Opinion

No. 2023-50632

06-26-2023

679 Waring Avenue, LLC, Petitioner-Landlord-Respondent, v. Manuel Sosa and Joel Sosa, Respondents-Tenants-Appellants, and John Doe and Jane Doe, Respondents.

PER CURIAM.

Unpublished Opinion

PRESENT: Brigantti, J.P., Michael, James, JJ.

PER CURIAM.

Tenants, as limited by their brief, appeal from 1) an order of the Civil Court of the City of New York, Bronx County (Christel Fleur Garland, J.), dated August 10, 2022, which denied their motion to vacate a prior order on the basis of alleged fraud and misconduct, and 2) an order (same court and Judge), dated August 18, 2022, which denied their request to compel landlord to furnish an executed renewal lease in compliance with an order of DHCR, in a holdover summary proceeding.

Appeal from order (Christel Fleur Garland, J.), dated August 10, 2022, dismissed, without costs, as nonappealable. Appeal from order (Christel Fleur Garland, J.), dated August 18, 2022, dismissed, without costs, as academic.

Despite tenants' denomination of their February 11, 2022 motion as one to vacate a prior (unappealed) order on the ground of fraud or misrepresentation (see CPLR 5015[a][3]), the motion was, in actuality, a motion for leave to reargue, and Civil Court properly treated it as such, "since it merely reiterated previously raised arguments, and presented no new material evidence" (Kaminer v Wexler, 40 A.D.3d 405, 406 [2007], lv dismissed 9 N.Y.3d 955, 975 [2007]; see Cangro v Cangro, 272 A.D.2d 286 [2000]). Indeed, the purported new facts concerning the building superintendent's status as an agent, rather than an employee of landlord, were known at the time of the prior motion and specifically addressed in tenants' counsel's May 12, 2021 affirmation. Accordingly, the appeal from the August 10, 2022 order is dismissed, as no appeal lies from the denial of a motion for reargument (see Brito v Allstate Ins. Co., 135 A.D.3d 568 [2016]; Matter of Suzanne v Suzanne, 69 A.D.3d 1011 [2010]). Were we to reach the merits, we would, in any event affirm.

Tenants' contentions regarding the August 18, 2022 order have been rendered academic by the parties' stipulation dated May 8, 2023, resolving, among other things, the parties' dispute regarding landlord's compliance with an order issued by DHCR.