Opinion
9264 9265 Index 381620/10
05-09-2019
ONEWEST BANK, FSB, Plaintiff–Appellant, v. Edgar BARBOSA, et al., Defendants–Respondents, New York State Department of Taxation and Finance, et al., Defendants.
Leopold & Associates, PLLC, Armonk (Shawn A. Brenhouse of counsel), for appellant. Brian McCaffrey, Jamaica, for respondents.
Leopold & Associates, PLLC, Armonk (Shawn A. Brenhouse of counsel), for appellant.
Brian McCaffrey, Jamaica, for respondents.
Sweeny, J.P., Gische, Tom, Gesmer, Singh, JJ.
Order, Supreme Court, Bronx County (Howard H. Sherman, J.), entered on or about July 24, 2017, which denied plaintiff's motion to vacate a March 1, 2017 order dismissing the action as against defendant Edgar Barbosa without prejudice, to restore the action to the active calendar, and to extend the time for plaintiff to effectuate service upon Barbosa pursuant to CPLR 306–b, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered on or about April 19, 2018, which denied plaintiff's motion to reargue the July 2017 order, unanimously dismissed, without costs, as taken from an nonappealable paper.
The court dismissed the action as against Barbosa in March 2017, but plaintiff did not move until June to extend the time to serve him. As the court correctly found in the July 2017 order, "once the action was dismissed, plaintiff could no longer seek an extension of time to effect service" ( Jimenez v. City of New York, 13 A.D.3d 107, 785 N.Y.S.2d 332 [1st Dept. 2004] ; see also Sottile v. Islandia Home for Adults, 278 A.D.2d 482, 483, 718 N.Y.S.2d 394 [2d Dept. 2000] ). Instead of simply opposing Barbosa's July 2016 motion to dismiss for lack of proper service, plaintiff should have—at least in the alternative—cross-moved to extend the time to serve him (see Sottile, 278 A.D.2d at 484, 718 N.Y.S.2d 394 ).
As for the 2018 order, "[n]o appeal lies from an order denying reargument" ( Matter of Bianca v. Frank, 55 A.D.2d 642, 643, 390 N.Y.S.2d 141 [2d Dept. 1976], affd on other grounds 43 N.Y.2d 168, 401 N.Y.S.2d 29, 371 N.E.2d 792 [1977] ).