Opinion
March 5, 1962
In a proceeding pursuant to section 110-a of the Civil Practice Act: (a) to remove to the Supreme Court a pending negligence action in the City Court of the City of New York, to recover damages for injury to person and property, in which the petitioner Hyman Lazarowitz is the plaintiff with respect to his personal injuries, one Aaron Kornfeld is the plaintiff with respect to his property damage, and the respondent Werner Wagner is the defendant; and (b) to increase from $6,000 to $75,000 the damages claimed for the personal injuries, the petitioner appeals, as limited by his brief: (1) from so much of an order of the Supreme Court, Kings County, dated October 26, 1959, as, upon the granting of reargument, denied his application to remove the action and to increase the damages claimed for his personal injuries; and (2) from an order of the same court, dated July 12, 1960 (entered July 13, 1960), which denied his motion for further reargument. Appeal from the first order of October 26, 1959, dismissed, without costs. Since that order was entered by petitioner (appellant), he was required to serve and file his notice of appeal therefrom within 30 days after its entry (Civ. Prac. Act, § 612). Having failed so to do, his appeal must be dismissed as untimely. The second order of July 12, 1960, is appealable. While nominally it would appear to be an order denying reargument which is not appealable, actually it is an order which denies a renewed application for the same relief on additional papers; it will be so treated. An order denying a renewed application on additional papers is appealable (cf. Matter of Rand, 273 App. Div. 859). On the merits, the said order of July 12, 1960 is affirmed, without costs. No opinion. Beldock, P.J., Ughetta and Christ, JJ., concur; Kleinfeld and Hopkins, JJ., concur in the dismissal of the appeal from the first order, but dissent from the affirmance of the second order and vote to reverse said order and to grant the petitioner's renewed application to remove the action to the Supreme Court and to increase the damages claimed for the personal injuries, with the following memorandum: Under all the facts and circumstances disclosed by this record it was an improvident exercise of discretion to deny the relief sought.