ROMAN v. KONIS (1998)

Supreme Court, Appellate Division, Second Department, New York.

Elizabeth ROMAN, et al., Appellants, v. Edward E. KONIS, etc., et al., Respondents.

Decided: October 05, 1998

MILLER, J.P., THOMPSON, PIZZUTO, McGINITY and LUCIANO, JJ.

Clifford, Purves, Acito & Kenny, Larchmont, N.Y. (Joseph M. Acito of counsel), for appellants. Aydelott & Aydelott, Mount Kisco, N.Y. (Judith A. Aydelott of counsel), for respondents.

In an action to recover damages for medical malpractice, etc., the plaintiffs appeal from an order of the Supreme Court, Orange County (Peter C. Patsalos, J.), entered September 12, 1997, which denied their motion, denominated as one for renewal and reargument of the plaintiffs' motion to restore the case to the trial calendar, but which was, in effect, a motion solely to reargue the prior motion.

ORDERED that the appeal is dismissed, with costs.

The plaintiffs' motion, denominated as one for renewal and reargument, was, in effect, a motion to reargue, since the purportedly new material could have been submitted in support of the original motion to restore the case to the trial calendar (see, Taylor v. Brooklyn Hosp., 187 A.D.2d 714, 715, 590 N.Y.S.2d 304; Echeverri v. Flushing Hosp. & Med. Ctr., 123 A.D.2d 818, 819, 507 N.Y.S.2d 433). Consequently, the order denying the motion is not appealable (see, Ackermann v. Town of Riverhead, 245 A.D.2d 404, 666 N.Y.S.2d 471; Castellitto v. Atlantic & Pac. Co., 244 A.D.2d 379, 664 N.Y.S.2d 97; Guigui v. Bonnie Castle Resort, 239 A.D.2d 315, 657 N.Y.S.2d 990).

MEMORANDUM BY THE COURT.

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