Opinion
No. 2022-50435 No. 2021-312 W C
05-24-2022
U.S. Equities Corp., Respondent, v. C'Lene E. Dunkey, Appellant.
C'Lene E. Dunkey, appellant pro se. Linda Strumpf, for respondent.
Unpublished Opinion
C'Lene E. Dunkey, appellant pro se.
Linda Strumpf, for respondent.
PRESENT:: JERRY GARGUILO, P.J., ELIZABETH H. EMERSON, BARRY E. WARHIT, JJ
Appeal from an order of the City Court of Yonkers, Westchester County (Evan Inlaw, J.), entered April 28, 2021. The order denied defendant's motion for, in effect, leave to reargue and renew her prior motions to dismiss the action or, in the alternative, vacate a judgment entered upon defendant's failure to appear or answer the complaint and to permit defendant to file an answer.
ORDERED that so much of the appeal as is from the portion of the order that denied the branch of defendant's motion seeking, in effect, leave to reargue is dismissed, as no appeal lies from a denial of reargument; and it is further, ORDERED that the order, insofar as reviewed, is affirmed, without costs.
In this action to recover for breach of a credit card agreement, upon defendant's failure to appear or answer the complaint, a default judgment was entered against defendant on May 3, 2011. In November 2019, defendant made an initial pro se motion to vacate the judgment, alleging that she had been unaware of the action until her bank account had been attached, and claiming that she had never been served. The City Court denied defendant's motion following a hearing. After making three additional pro se motions, each seeking to vacate the default judgment, and each of which was denied, defendant retained an attorney, who made a further motion on defendant's behalf, again seeking vacatur of the default judgment and related relief. Plaintiff opposed the motion, which the City Court denied by order entered April 28, 2021, upon a finding that it had previously considered and rejected all the arguments raised by defense counsel. Defendant appeals from the April 28, 2021 order.
Defendant's motion, which sought to affect the City Court's prior orders, in effect was brought pursuant to CPLR 2221, although in her motion defendant erroneously failed to specify whether she sought leave to reargue or renew her prior motions (see CPLR 2221[d] [1], [e] [1]). To the extent that defendant sought leave to reargue her prior motions, she failed to specify any matters of fact or law that the City Court had previously overlooked or misapprehended (see CPLR 2221[d] [2]), and, in any event, no appeal lies from an order denying reargument (see Deutsche Bank Natl. Trust Co. v Spanos, 180 A.D.3d 997 [2020]; Alvarez v Jawaid, 163 A.D.3d 746, 748 [2018]).
The City Court properly denied defendant's motion to the extent that she sought leave to renew her prior motions. Such a motion must "be based upon new facts not offered on the prior motion that would change the prior determination" (CPLR 2221 [e] [2]) and must "contain reasonable justification for the failure to present such facts on the prior motion" (CPLR 2221 [e] [3]; see Bank of NY Mellon v Lewis, 200 A.D.3d 969, 970 [2021]), but defendant failed to meet either of those requirements in her moving papers. We do not consider the documents defendant submitted to the court for the first time as exhibits to her reply papers (see HSBC Bank USA, N.A. v Rahmanan, 194 A.D.3d 792, 795 [2021]; Deutsche Bank Natl. Trust Co. v Saketos, 158 A.D.3d 610 [2018]).
To the extent that defendant's pro se status may have hindered her in the presentation of her motions, we note that a litigant appears pro se at her own risk and acquires no greater right than any other litigant by reason of her pro se status. A pro se appearance may not be used to deprive an adversary of the same rights enjoyed by other litigants (see Roundtree v Singh, 143 A.D.2d 995, 996 [1988]; see also Matter of Chana J.A. v Barry S., 135 A.D.3d 743, 744 [2016]; Walter v Jones, Sledzik, Garneau & Nardone, LLP, 67 A.D.3d 671, 672 [2009]).
Accordingly, the order, insofar as reviewed, is affirmed.
GARGUILO, P.J., EMERSON and WARHIT, JJ., concur.