Kitchen v Diakhate

Kitchen v Diakhate 2009 NY Slip Op 09388 [68 AD3d 570] December 17, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 10, 2010

Cynthia Kitchen, Appellant,
v
Mamadou L. Diakhate, Respondent, et al., Defendants.

—[*1] Sweetbaum & Sweetbaum, Lake Success (Marshall D. Sweetbaum of counsel), for appellant.

Baker, McEvoy, Morrissey & Moskovits, P.C., New York (Stacy R. Seldin of counsel), for respondent.

Appeal from order, Supreme Court, Bronx County (Howard R. Silver, J.), entered February 9, 2009, to the extent it denied plaintiff's motion to reargue an in limine order precluding certain evidence, unanimously dismissed, without costs, as taken from a nonappealable paper.

Denial of a motion to reargue is not appealable as of right (Freeman v Prince Leasing Corp., 49 AD3d 455 [2008]). This motion clearly sought reargument, not vacatur, as it was alternatively denominated (see People v American Motor Club, 241 AD2d 409 [1997]).

Were we to consider the appeal on the merits, we would affirm the preclusion of evidence concerning plaintiff's knee injury, as the undue 2½-year delay in correcting her deposition testimony until the eve of trial was prejudicial to defendants. Concur—Gonzalez, P.J., Mazzarelli, Nardelli, Acosta and RomÁn, JJ.