Opinion
April 18, 1994
Appeal from the Supreme Court, Dutchess County (Jiudice, J.).
Orderded that the appeal is dismissed, with costs.
The plaintiffs' counsel requested that the action be stricken from the trial calendar and then neglected to move to restore the case to the calendar within one year. Consequently, the action was automatically dismissed pursuant to CPLR 3404, and judgment was entered thereon. The plaintiffs' counsel subsequently moved for leave to file a late note of issue, and the defendants opposed the motion on the ground, inter alia, that the appropriate remedy was to seek to vacate the plaintiffs' default. In response, the plaintiffs' counsel submitted an affidavit of merit by a physician and asked the court to treat the motion as one to vacate the default. In an order dated June 13, 1990, the court denied the motion to vacate on the merits. The plaintiffs did not appeal from that order. Approximately 17 months later, by notice of motion dated November 6, 1991, the plaintiffs' counsel again moved to vacate the CPLR 3404 default, raising essentially the same arguments and submitting a similar affidavit of merit which had been prepared by another physician. In an order appealed from, the court denied the motion, observing that "the plaintiffs are seeking to raise an issue which has been previously ruled upon".
The motion made in November 1991 was clearly an untimely motion for reargument, the denial of which is not appealable (see, Matter of James v Rodriguez, 193 A.D.2d 990; Morgan v Morgan Manhattan Stor. Co., 184 A.D.2d 366; Northern Assur. Co. v Holden, 179 A.D.2d 569; Chiarella v Quitoni, 178 A.D.2d 502). Accordingly, the appeal is dismissed. Bracken, J.P., Sullivan, Miller and Hart, JJ., concur.