CONSTABLE v. Thomas Constable, as executor of the estate of Titus Constable, nonparty-appellant. (2023)

DECISION & ORDER

In an action, inter alia, to recover damages for medical malpractice, nonparty Thomas Constable, as executor of the estate of Titus Constable, appeals from an order of the Supreme Court, Richmond County (Lizette Colon, J.), dated May 20, 2021.  The order, insofar as appealed from, denied that branch of the motion of nonparty Thomas Constable, as executor of the estate of Titus Constable, which was denominated as one for leave to renew and reargue, but which was, in actuality, one for leave to reargue with respect to the defendant's motion pursuant to CPLR 1021 to dismiss the complaint.

ORDERED that the appeal is dismissed, with costs.

No appeal lies from the denial of reargument (see Cassagnol v. Village of Hempstead, 214 AD3d 766, 767;  Vaccaro v. Francolopez, 205 AD3d 759, 760).  Here, the subject branch of the appellant's motion, though denominated as one for leave to renew and reargue, was, in actuality, one for leave to reargue, the denial of which is not appealable (see Brito v. New York City Hous. Auth., 189 AD3d 1155, 1157;  Diller v. Munzer, 141 AD3d 630, 631).

DECISION & ORDER ON MOTION

Appeal from an order of the Supreme Court, Richmond County, dated May 20, 2021.  Cross-motion, in effect, by Thomas Constable, as executor of the estate of Titus Constable, inter alia, to be substituted nunc pro tunc for the deceased plaintiff, and to amend the caption accordingly.  By decision and order on motion of this Court dated July 8, 2022, those branches of the cross-motion which were to be substituted nunc pro tunc for the deceased plaintiff and to amend the caption accordingly were held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof.

Upon the papers filed in support of those branches of the cross-motion and the papers filed in opposition thereto, and upon the argument of the appeal, it is

ORDERED that those branches of the cross-motion which were to be substituted nunc pro tunc for the deceased plaintiff and to amend the caption accordingly are denied.

CONNOLLY, J.P., BRATHWAITE NELSON, CHAMBERS and VOUTSINAS, JJ., concur.