Forbes v Giacomo

Forbes v Giacomo 2015 NY Slip Op 05778 Decided on July 2, 2015 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on July 2, 2015
Mazzarelli, J.P., Friedman, Richter, Manzanet-Daniels, Gische, JJ.
157640/12 15582 15581

[*1] Renee Forbes, Plaintiff-Appellant,

v

Paul J. Giacomo, Jr., etc., et al., Defendants-Respondents.

Ruta Soulios & Stratis LLP, New York (Steven A. Soulios of counsel), for appellant.

Milber Makris Plousadis & Seiden, LLP, Woodbury (Lorin A. Donnelly of counsel), for respondents.

Appeal from order, Supreme Court, New York County (Anil C. Singh, J.), entered on or about October 25, 2013, which granted defendants' motion to dismiss the complaint, unanimously dismissed, without costs, as untimely taken. Order, same court and Justice, entered on or about June 9, 2014, which denied plaintiff's motion for reargument, unanimously dismissed, without costs, as taken from a nonappealable paper.

Plaintiff did not file a notice of appeal from the October 24, 2013 order until months after she was served with the order and notice of entry, i.e. on July 8, 2014 (see CPLR 5513[a]). Contrary to her contention, "a motion to reargue may not be used

by a party to extend its time to appeal" (Luming Café v Birman, 125 AD2d 180, 180-181 [1st Dept 1986]).

No appeal lies from an order denying reargument (see Cangro v Rosado, 111 AD3d 422 [1st Dept 2013]). The motion court did not address the merits of the motion (cf. Lipsky v Manhattan Plaza, Inc., 103 AD3d 418 [1st Dept 2013] [order purporting to deny motion for reargument but addressing merits is appealable as of right]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JULY 2, 2015

CLERK