CRONIN v. (and a third-party action). (2009)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Brandveen, J.), dated December 11, 2008, which denied his motion, denominated as one pursuant to CPLR 2221 to vacate, but which, in actuality, was for leave to reargue his prior motion, in effect, to vacate an order of the same court dated December 17, 2007, granting the motion of the defendants Hudson Chelsea Associates, LLC, Mandelbaum 23rd Street, LLC, the Kimmel Family 23rd Street, LLC, and Mondanock Construction, Inc., for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff had failed to serve and file a timely response to the summary judgment motion.

ORDERED that the appeal is dismissed, with costs.

The Supreme Court denied the plaintiff's first motion, in effect, to vacate a prior order of the same court dated December 17, 2007, which had granted the motion of the defendants Hudson Chelsea Associates, LLC, Mandelbaum 23rd Street, LLC, the Kimmel Family 23rd Street, LLC, and Mondanock Construction, Inc., for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff had failed to serve and file a timely response to the summary judgment motion, as previously directed by the court. The plaintiff's second motion, which was denominated as one pursuant to CPLR 2221 to vacate, was identical to the first motion to vacate, and, thus, in actuality, was a motion for leave to reargue (see Cunningham v. Diers, 14 AD3d 528, 529; Agayeva v. KJ Shuttle Serv., 284 A.D.2d 488, 726 N.Y.S.2d 584; Cangro v. Cangro, 272 A.D.2d 286, 707 N.Y.S.2d 895; Mucciola v. City of New York, 177 A.D.2d 553, 554, 576 N.Y.S.2d 291). Accordingly, the appeal must be dismissed, as no appeal lies from an order denying leave to reargue (see Cunningham v. Diers, 14 AD3d at 529; Syed v. Fedor, 302 A.D.2d 451, 753 N.Y.S.2d 750; Lopez v. Lincoln Appliances, Bedding & Furniture, 300 A.D.2d 451, 452, 751 N.Y.S.2d 556).