Opinion
17018 Index No. 100915/21 Case No. 2022/03168
12-29-2022
Ahdawantazalam AARON, Plaintiff–Appellant, v. Hon. Tanya R. KENNEDY, Defendant–Respondent.
Ahdawantazalam Aaron, appellant pro se. Letitia James, Attorney General, New York (David Lawrence III of counsel), for respondent.
Ahdawantazalam Aaron, appellant pro se.
Letitia James, Attorney General, New York (David Lawrence III of counsel), for respondent.
Manzanet–Daniels, J.P., Oing, Singh, Moulton, Mendez, JJ.
Appeal from order, Supreme Court, New York County (Barbara Jaffe, J.), entered on or about April 25, 2022, which denied plaintiff pro se's motion to reargue defendant's motion to dismiss pursuant to CPLR 3211(a)(2) and (7), unanimously dismissed, without costs, as taken from a nonappealable order.
No appeal lies from the denial of a motion for reargument (see Matter of Able Rigging Contrs., Inc. v. Gemini Mach. Works, Inc., 200 A.D.3d 588, 588, 155 N.Y.S.3d 770 [1st Dept. 2021] ). Moreover, the underlying order granting defendant's motion to dismiss pursuant to CPLR 3211(a)(2) and (7) was entered upon plaintiff's default. Therefore, the proper remedy was for plaintiff to move under CPLR 5501(a) to vacate the default, not to move for leave to reargue (see Figiel v. Met Food, 48 A.D.3d 330, 330, 851 N.Y.S.2d 524 [1st Dept. 2008] ). Notably, plaintiff does not offer any reasonable excuse for his default.
Even if we were to consider plaintiff's appeal, we would determine that the motion to dismiss the complaint was properly granted. Plaintiff sought to vacate defendant's order denying his petition for guardianship of his adult incapacitated child and his request to have her evaluated by an independent physician. As a court of coordinate jurisdiction, the motion court did not have jurisdiction to vacate the guardianship order and order a new hearing before a different judge (see Mears v. Chrysler Fin. Corp., 243 A.D.2d 270, 272, 663 N.Y.S.2d 22 [1st Dept. 1997] ). Defendant, who issued the guardianship in her judicial capacity, also has immunity against plaintiff's claims (see Sassower v. Finnerty, 96 A.D.2d 585, 586–587, 465 N.Y.S.2d 543 [2d Dept. 1983] ). Further, to the extent plaintiff seeks to relitigate the issues decided by the guardianship order, he is barred by the doctrines of res judicata and collateral estoppel (see Matter of People v. Applied Card Sys., Inc., 11 N.Y.3d 105, 122, 863 N.Y.S.2d 615, 894 N.E.2d 1 [2008] ; Conason v. Megan Holding, LLC, 25 N.Y.3d 1, 17, 6 N.Y.S.3d 206, 29 N.E.3d 215 [2015] ). Plaintiff already exercised his right to appeal from the guardianship order, and we affirmed (see Matter of Ahdawantazalam A. v. Georgilia A., 184 A.D.3d 496, 496, 124 N.Y.S.3d 183 [1st Dept. 2020] ).
Finally, we note that plaintiff fails to state any factual allegations to support his claims that defendant was biased against him and that his due process rights were violated, nor does he have standing to sue on his adult child's behalf as he is not her guardian (see McReynolds v. Broderick, 278 A.D.2d 6, 7, 717 N.Y.S.2d 139 [1st Dept. 2000] ).