MidFirst Bank v Storto

MidFirst Bank v Storto 2014 NY Slip Op 06733 Decided on October 3, 2014 Appellate Division, Fourth 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 October 3, 2014 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, AND VALENTINO, JJ.
995 CA 13-02254

[*1]MIDFIRST BANK, PLAINTIFF-APPELLANT,

v

GABRIEL B. STORTO, DEFENDANT-RESPONDENT, ET AL., DEFENDANTS.

Appeal from an order and judgment (one paper) of the Supreme Court, Onondaga County (James P. Murphy, J.), entered May 30, 2013. The order and judgment denied the motion of plaintiff for leave to reargue a prior motion to vacate an order and judgment of dismissal.

FRENKEL LAMBERT WEISS WEISMAN & GORDON, LLP, BAY SHORE (MICHELLE MACCAGNANO OF COUNSEL), FOR PLAINTIFF-APPELLANT.

It is hereby ORDERED that said appeal is unanimously dismissed without costs.

Memorandum: Although plaintiff has denominated the motion giving rise to the order and judgment on appeal as a motion to vacate the order and judgment of dismissal previously issued by Supreme Court, we conclude from the papers submitted in support of the motion that it was actually a motion for leave to reargue a prior motion to vacate the order and judgment of dismissal (see Britt v Buffalo Mun. Hous. Auth., 115 AD3d 1252, 1252; Cronin v Hudson Chelsea Assoc., LLC, 68 AD3d 913, 913-914). "Although this second motion allegedly presented new legal arguments, no excuse was offered as to why these additional arguments could not have been presented in connection with [plaintiff's] earlier motion to vacate," the motion was in effect a motion for leave to reargue, and no appeal lies from an order denying such a motion (Glowacki v Szatkowski, 198 AD2d 264, 264-265). We therefore conclude that plaintiff's appeal must be dismissed (see CPLR 5701 [a] [2] [viii]; Hilliard v Highland Hosp., 88 AD3d 1291, 1292-1293; Cronin, 68 AD3d at 914).

Entered: October 3, 2014

Frances E. Cafarell

Clerk of the Court