LEE v. CONSOLIDATED EDISON COMPANY OF NEW YORK

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

Ping LEE, et al., Plaintiffs-Appellants, v. CONSOLIDATED EDISON COMPANY OF NEW YORK, Defendant-Respondent.

Decided: May 24, 2007

MAZZARELLI, J.P., MARLOW, GONZALEZ, CATTERSON, KAVANAGH, JJ. Ping Lee, appellant pro se. No appearance or brief on behalf of respondent.

Appeal from order, Supreme Court, New York County (Barbara R. Kapnick, J.), entered March 13, 2006, which deemed plaintiffs' motion to vacate a prior order, same court and Justice, entered November 4, 2005, to be one for reargument, and, so considered, denied the motion, unanimously dismissed, without costs.

The motion was properly deemed to be one for reargument since it raised only matters that had been considered on the prior motion and presented no new facts (CPLR 2221[d],[e] ).   Accordingly, the order denying the motion is not appealable (see Wasserman v. Eisenberg, 287 A.D.2d 277, 278-279, 731 N.Y.S.2d 14 [2001], lv. denied 97 N.Y.2d 613, 742 N.Y.S.2d 605, 769 N.E.2d 352 [2002] ).   Were we to review plaintiffs' claim that the November 4, 2005 order should be vacated because the February 3, 1993 judgment dismissing the action on which it is based was procured by fraud, we would find it without merit.