COMMISSIONER OF NEW YORK STATE DEPARTMENT OF TRANSPORTATION v. POLITE (2024)

DECISION & ORDER

In an action, inter alia, to enjoin the construction and operation of certain structures and for related declaratory relief, the defendants Bryan A. Polite, Launcelot A. Gumbs, Seneca Bowen, Daniel Collins, Sr., Germain Smith, Donald Williams, Jr., and Linda Franklin appeal from an order of the Supreme Court, Suffolk County (Carmen Victoria St. George, J.), dated July 14, 2022.  The order, insofar as appealed from, denied those defendants’ motion, denominated as one for summary judgment dismissing the amended complaint insofar as asserted against them, but which was, in actuality, one for leave to reargue their prior motion pursuant to CPLR 3211(a) to dismiss the amended complaint insofar as asserted against them, which had been denied in an order of the same court (Sanford Neil Berland, J.) dated May 18, 2020.

ORDERED that the appeal is dismissed, without costs or disbursements, as no appeal lies from an order denying reargument.

The underlying facts of this action are summarized in our opinion and order on a related appeal (see Commissioner of N.Y. State Dept. of Transp. v. Polite, ––– A.D.3d ––––, ––– N.Y.S.3d ––––, 2024 WL 4964811 [Appellate Division Docket No. 2020–05137;  decided herewith]).

The motion of the defendants Bryan A. Polite, Launcelot A. Gumbs, Seneca Bowen, Daniel Collins, Sr., Germain Smith, Donald Williams, Jr., and Linda Franklin, although denominated as one for summary judgment dismissing the amended complaint insofar as asserted against them on the grounds of sovereign immunity and failure to join a necessary party, was, in actuality, under the circumstances presented here, a motion for leave to reargue their prior motion pursuant to CPLR 3211(a) to dismiss the amended complaint insofar as asserted against them on the same grounds, which had been denied in an order that is the subject of the related appeal.  As the denial of a motion for leave to reargue is not appealable, the appeal must be dismissed (see Brilliantine v. East Hampton Fuel Oil Corp., 221 A.D.3d 951, 952, 198 N.Y.S.3d 606;  Cronin v. Hudson Chelsea Assoc., LLC, 68 A.D.3d 913, 892 N.Y.S.2d 422;  Lapadula v. Sang Shing Kwok, 304 A.D.2d 798, 757 N.Y.S.2d 869).

CONNOLLY, J.P., MALTESE, DOWLING and WARHIT, JJ., concur.