ABRAHAM v. TORATI (2023)

DECISION & ORDER

In an action, inter alia, to recover damages for fraud, the defendants appeal from (1) an order of the Supreme Court, Queens County (Timothy J. Dufficy, J.), entered September 24, 2018, (2) an order of the same court, entered March 15, 2019, and (3) an order of the same court, entered April 11, 2019.  The order entered September 24, 2018, insofar as appealed from, (a) denied the defendants’ motion pursuant to CPLR 3211(a)(7) to dismiss the amended complaint insofar as asserted against the defendants NSS Financial Services, LLC, and Skygate 10, LLC, and to dismiss the second, third, and fourth causes of action insofar as asserted against the defendant Hezi Torati, and (b) conditionally granted the plaintiffs’ cross-motion pursuant to CPLR 3126 to the extent of precluding the defendants from offering any evidence at trial on the issue of liability, unless the defendants appeared for depositions and complied with all outstanding discovery demands within 60 days of the date of the order.  The order entered March 15, 2019, insofar as appealed from, granted the plaintiffs’ cross-motion for summary judgment on the issue of liability.  The order entered April 11, 2019, insofar as appealed from, (a) denied that branch of the defendants’ motion which was denominated as one for leave to renew, but which was, in actuality, one for leave to reargue their prior motion pursuant to CPLR 3211(a)(7) to dismiss the amended complaint insofar as asserted against the defendants NSS Financial Services, LLC, and Skygate 10, LLC, and to dismiss the second, third, and fourth causes of action insofar as asserted against the defendant Hezi Torati, which had been denied in the order entered September 24, 2018, (b) denied the defendants’ separate motion for leave to reargue their opposition to the plaintiffs’ prior cross-motion pursuant to CPLR 3126, among other things, to preclude the defendants from offering any evidence at trial on the issue of liability, which had been conditionally granted in part in the order entered September 24, 2018, and (c) denied the defendants’ separate motion to vacate the note of issue.

Motion by the plaintiffs to dismiss the appeals from the orders entered September 24, 2018, March 15, 2019, and April 11, 2019, on the ground that the right of direct appeal therefrom terminated with the entry of a judgment in the action.  By decision and order on motion of this Court dated September 23, 2022, the motion was held in abeyance and referred to the panel of Justices hearing the appeals for determination upon the argument or submission thereof.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the submission of the appeals, it is

ORDERED that the appeal from so much of the order entered April 11, 2019, as (a) denied that branch of the defendants’ motion which was denominated as one for leave to renew, but which was, in actuality, one for leave to reargue their prior motion pursuant to CPLR 3211(a)(7), which had been denied in the order entered September 24, 2018, and (b) denied the defendants’ motion for leave to reargue their opposition to the plaintiffs’ prior cross-motion pursuant to CPLR 3126, among other things, to preclude the defendants from offering any evidence at trial on the issue of liability, which had been conditionally granted in part in the order entered September 24, 2018, is dismissed, without costs or disbursements;  and it is further,

ORDERED that the branch of the motion which is to dismiss the appeal from so much of the order entered April 11, 2019, as (a) denied that branch of the defendants’ motion which was denominated as one for leave to renew, but which was, in actuality, one for leave to reargue their prior motion pursuant to CPLR 3211(a)(7), which had been denied in the order entered September 24, 2018, and (b) denied the defendants’ motion for leave to reargue their opposition to the plaintiffs’ prior cross-motion pursuant to CPLR 3126, among other things, to preclude the defendants from offering any evidence at trial on the issue of liability, which had been conditionally granted in part in the order entered September 24, 2018, is denied as academic in light of our determination;  and it is further,

ORDERED that those branches of the motion which are to dismiss the appeals from the orders entered September 24, 2018, and March 15, 2019, and so much of the order entered April 11, 2019, as denied the defendants’ motion to vacate the note of issue are granted;  and it is further,

ORDERED that the appeals from the orders entered September 24, 2018, and March 15, 2019, and so much of the order entered April 11, 2019, as denied the defendants’ motion to vacate the note of issue are dismissed, without costs or disbursements.

The appeal from so much of the order entered April 11, 2019, as (a) denied that branch of the defendants’ motion which was denominated as one for leave to renew, but which was, in actuality, one for leave to reargue their prior motion pursuant to CPLR 3211(a)(7), which had been denied in the order entered September 24, 2018, and (b) denied the defendants’ motion for leave to reargue their opposition to the plaintiffs’ prior cross-motion pursuant to CPLR 3126, among other things, to preclude the defendants from offering any evidence at trial on the issue of liability, which had been conditionally granted in part in the order entered September 24, 2018, must be dismissed, as no appeal lies from the denial of reargument (see HSBC Bank USA, N.A. v. Nieves, 199 A.D.3d 665, 666, 153 N.Y.S.3d 894;  Brito v. New York City Hous. Auth., 189 A.D.3d 1155, 1157, 134 N.Y.S.3d 269).

The appeals from the orders entered September 24, 2018, and March 15, 2019, and so much of the order entered April 11, 2019, as denied the defendants’ motion to vacate the note of issue, must be dismissed because the right of direct appeal therefrom terminated with the entry of a judgment in this action (see Matter of Aho, 39 N.Y.2d 241, 383 N.Y.S.2d 285, 347 N.E.2d 647).  The issues raised on the appeals from the orders entered September 24, 2018, and March 15, 2019, and so much of the order entered April 11, 2019, as denied the defendants’ motion to vacate the note of issue, are brought up for review and have been considered on the appeal from the judgment in the action (see CPLR 5501[a][1];  Abraham v. Torati, ––– A.D.3d ––––, ––– N.Y.S.3d ––––, 2023 WL 5944020 [Appellate Division Docket No. 2022–01523;  decided herewith]).

IANNACCI, J.P., MILLER, MALTESE and FORD, JJ., concur.