The order after reconsideration is a new judgment, and everything within that new judgment is open for challenge on appeal, even if an appeal had been taken from the prior judgment. Council Commerce Corp. v. Paschalides, 92 A.D.2d 579, 459 N.Y.S.2d 463, 464 (2d Dept. 1983); Mastan Co., supra, 444 N.Y.S.2d 315, 317. Since the Civil Court granted Kirsh's motion for reconsideration of the default judgment in November, 1989, the earlier contempt judgment of August 2, 1988 was superseded, and an appeal from proceedings related to that judgment cannot form the basis for a procedural default. Kirsh's assertion of cause for the second procedural default relied upon by the Appellate Term, however is unavailing. That court observed that Kirsh's constitutional claims were not pursued at the hearing on appellant's renewal motion be low, [and have therefore] not been preserved for appellate review.
The Supreme Court denied the motion, and we affirm. CPLR 3213 provides a means of obtaining an accelerated judgment where a defendant's liability is premised upon an instrument for the payment of money only, such as an unconditional guaranty (see Cooperatieve Centrale RaiffeisenโBoerenleenbank, B.A., "Rabobank Intl.," N.Y. Branch v. Navarro, 25 N.Y.3d 485, 491โ492, 15 N.Y.S.3d 277, 36 N.E.3d 80 ; Council Commerce Corp. v. Paschalides, 92 A.D.2d 579, 459 N.Y.S.2d 463 ). Here, the plaintiff established its prima facie entitlement to summary judgment by proving the existence of the guaranty, the underlying debt, and the defendant guarantor's failure to perform under the guaranty (see United Rentals [N. Am.], Inc. v. Iron Age Tool Corp., 150 A.D.3d 1304, 1306, 57 N.Y.S.3d 177 ; North Fork Bank v. ABC Merchant
ORDERED that the appeal is dismissed, without costs or disbursements, as the order appealed from was superseded by an order of the same court dated September 1, 1998, made upon reargument. The appeal from the order dated March 20, 1998, must be dismissed, as that order was superseded by an order of the same court dated September 1, 1998, in which the court, in effect, granted reargument and adhered to the determination in the order dated March 20, 1998, denying the motion of the defendants Joseph Intravia and Denise Intravia for summary judgment dismissing the complaint and all cross claims insofar as asserted against them (see, Bruscella v. Abbondondolo, Appellate Division Docket No. 1999-00250 [decided herewith]; Dreifuss v. Cohen, 177 A.D.2d 682;Council Commerce Corp. v. Paschalides, 92 A.D.2d 579). JOY, J.P., GOLDSTEIN, McGINITY and FEUERSTEIN, JJ., concur.
Defendant appeals from both orders. As a procedural matter, we note that the original order was effectively superseded by the subsequent order and, therefore, the appeal from the original order should be dismissed (see, Council Commerce Corp. v. Paschalides, 92 A.D.2d 579). We reject defendant's contention that the agreement imposed no obligation upon him to pay a portion of Jordan's education expenses.
With respect to Lofrese, such a contention is misplaced, since the action against him is based on the personal guarantee executed by him. The unconditional guarantee executed by him is an instrument for the payment of money only within the meaning of CPLR 3213 (see, Council Commerce Corp. v Paschalides, 92 A.D.2d 579; Rhodia, Inc. v Steel, 32 A.D.2d 753). "A guarantee may be the proper subject of a motion for summary judgment in lieu of complaint whether or not it recites a sum certain.
By order dated October 27, 1989, this court denied the plaintiff's motion for an enlargement of time to perfect her appeal from an order of the Supreme Court, Queens County (Graci, J.), dated February 16, 1989, which granted the defendant's motion to dismiss the complaint for failure to file a Notice of Dental Malpractice pursuant to CPLR 3406, and granted the respondent's cross motion to dismiss the appeal. At that time, the order dated February 16, 1989, had been superseded by an order of the same court, dated June 8, 1989, which granted the plaintiff's motion for reargument, and, upon reargument, adhered to the original determination (see, Council Commerce Corp. v. Paschalides, 92 A.D.2d 579). Thus, the dismissal of the appeal from the order dated February 16, 1989, cannot be deemed an adjudication on the merits of all claims which could have been litigated on the appeal (cf., Bray v. Cox, 38 N.Y.2d 350).
However, it is undisputed that defendants unconditionally guaranteed payment of the corporate obligation which is now in default. Such an unconditional guarantee qualifies as an instrument for the payment of money only within the meaning of CPLR 3213 (see, European Am. Bank Trust Co. v Schirripa, 108 A.D.2d 684; Manufacturers Hanover Trust Co. v Green, 95 A.D.2d 737, appeal dismissed 61 N.Y.2d 760; Council Commerce Corp. v Paschalides, 92 A.D.2d 579).
Ordered that the order is affirmed insofar as appealed from, with costs. Initially we note that, contrary to the plaintiff's assertion, an order granting reargument but adhering to the original determination is appealable (see, Dennis v Stout, 24 A.D.2d 461; Council Commerce Corp. v Paschalides, 92 A.D.2d 579). A party attempting to vacate a default judgment on the ground of excusable default (CPLR 5015 [a] [1]) must establish both that there is a reasonable excuse for the default and that there exists a meritorious defense (see, Schultz v Ruggiero, 129 A.D.2d 573; Siegel, N Y Prac ยง 108).
Clearly, such a guarantee qualifies as an "instrument for the payment of money only" under CPLR 3213. (Citibank [N.Y. State] v. Schaffran, 96 A.D.2d 726; Council Commerce Corp. v. Paschalides, 92 A.D.2d 579; Chase Manhattan Bank v. Kahn, 66 A.D.2d 704; cf. Dresdner Bank v Morse/Diesel, Inc., 115 A.D.2d 64.) The application of the statute is not affected by the circumstance that the instrument in question was part of a larger transaction, such as the sale of business, as long as the instrument requires the defendant to make certain payments and nothing else.
Finally, we note that the order entered January 2, 1985 superseded the order entered October 12, 1984 and, therefore, brings up for review all rulings contained therein. Accordingly, the appeal from the prior order should therefore be dismissed (see, Marine Midland Bank v Fisher, 85 A.D.2d 905; see also, Council Commerce Corp. v Paschalides, 92 A.D.2d 579). Appeal from order entered October 12, 1984 dismissed, without costs.