Yu Hin Chan, Plaintiff(s) v. Athanasia DiMaggio, Defendant(s) (2026)

Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:

Papers Numbered

Order to show Cause/ Notice of Motion 1

Answering Affidavits/ Affirmations 1

Reply Affidavits/ Affirmations

Memoranda of Law

Other

Upon the foregoing cited papers, the Decision/ Order on the motion to reargue is denied for the following reason(s):

Before this Court is Defendant's motion to reargue his motion to dismiss the complaint (Mot. Seq. 4), which motion was previously denied by this court (Esposito, J.), in a decision and order dated August 11, 2025, which decision was entered by the filing of Notice of Entry on August 22, 2025, by Plaintiff. Defendant filed the within Notice of Motion to Reargue on January 20, 2026, with no supporting affidavit or affirmation. Plaintiff filed his opposition on February 11, 2026, arguing, inter alia "Defendant's submission is devoid of an affirmation in support, making the submission void" and "Defendant's motion is also time-barred: the Order at issue was entered on 8/16/25, Defendant did not file their motion within 14 days, thus abandoned its (sic) rights." Even without considering the sufficiency of Plaintiff's opposition papers, this motion to dismiss must be DENIED.

First, plaintiff is correct that this motion to reargue is untimely since it was filed more than 30 days from the date of filing the Notice of Entry of the original motion. Here, the affidavit of service of the Notice of Entry states that same was mailed to the defendant's attorney on August 22, 2025.¹ Accordingly, this motion to reargue filed in January of 2026 is clearly untimely under CPLR § 2221(d) which states that a motion to reargue must be made within 30 days of the service of the Notice of Entry of the order denying the original motion. (CPLR § 2221 [d][3]).

Again, plaintiff is correct that this motion to reargue is in violation of CPLR § 2214 (a), which requires that a Notice of Motion to be accompanied by the supporting papers upon which the motion is based. Here, defendant did not attach any supporting papers to his motion.

Moreover, this motion to reargue is defective in that, pursuant to CPLR§ 2221(d)(2), a motion to reargue shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion but shall not include any matters of fact not offered on the prior motion. Here, since defendant did not accompany his Notice of Motion with supporting papers, nor did he attach an affidavit or affirmation in support of his motion, the court is clearly unable to determine what issues, if any, he is claiming to have been overlooked or misapprehended in deciding his original motion to dismiss. The motion to reargue is bare and is not supported by either fact(s) or law.

Based on the foregoing it is:

ORDERED that the defendant's motion to reargue (motion seq. 4) is DENIED.

Date: March 4, 2026

Hon. Chidi A. Eze

Civil Court Judge (Kings)

FOOTNOTES

1.   Although the affidavit was not notarized by the server, it nonetheless meets CPLR § 2106 standard, which permits an affirmation of truth of a statement to be used in lieu of an affidavit.

Chidi A. Eze, J.