STILLWAY v. GUZEWICZ (1999)

In a matrimonial action in which the parties were divorced by judgment entered April 13, 1995, the defendant father appeals, as limited by his brief, from stated portions of an order of the Supreme Court, Nassau County (Warshawsky, J.), dated March 9, 1998, which, inter alia, (1) denied that branch of his motion which was, in effect, for reargument of an order of the same court (O'Brien, J.), dated December 18, 1997, which, among other things, denied so much of his motion as sought a change of custody, and (2) denied that branch of his motion which was to enjoin the plaintiff mother from relocating with the parties' infant child pending the determination of so much of his motion as was, in effect, for reargument.

ORDERED that the appeal from so much of the order as denied that branch of the motion of the defendant father which was, in effect, for reargument, is dismissed, as no appeal lies from an order denying reargument;  and it is further,

ORDERED that the appeal from so much of the order as denied that branch of the motion which was to enjoin the plaintiff mother from relocating with the parties' infant child pending the determination of so much of the motion as was, in effect, for reargument is dismissed as academic;  and it is further,

ORDERED that the respondent is awarded one bill of costs.

That branch of the defendant's motion which was denominated as being for renewal and reargument was, in effect, for reargument, since the purportedly new facts were either not material, or the defendant failed to offer a reasonable excuse as to why they were not submitted at the time of the original motion (see, Roman v. Konis, 254 A.D.2d 269, 678 N.Y.S.2d 121 ;  Schumann v. City of New York, 242 A.D.2d 616, 662 N.Y.S.2d 777;  Foley v. Roche, 68 A.D.2d 558, 418 N.Y.S.2d 588).   Consequently, the appeal from so much of the order as denied that branch of the defendant's motion which was, in effect, for reargument is dismissed, as an order denying reargument is not appealable.

Moreover, the appeal from so much of the order as denied that branch of the defendant's motion which was to enjoin the plaintiff mother from relocating with the parties' infant child pending the determination of that part of his motion which was, in effect, for reargument, must be dismissed as academic, as reargument has been denied (see, Matter of Anonymous [Boggs] v. New York City Health & Hosps., Corp., 70 N.Y.2d 972, 974, 525 N.Y.S.2d 796, 520 N.E.2d 515;  Matter of McClure v. McClure, 176 A.D.2d 325, 574 N.Y.S.2d 523).

MEMORANDUM BY THE COURT.