Sergey Boyer v Mary Pacifico

Boyer v Pacifico 2004 NY Slip Op 01524 [5 AD3d 419] March 8, 2004 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, May 26, 2004

Sergey Boyer, Appellant,
v
Mary Pacifico, Respondent.

—In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (LeVine, J.), dated September 11, 2002, which denied his motion, denominated as one for leave to renew and reargue, but which was, in effect, for leave to reargue his prior cross motion to restore the action.

Ordered that the appeal is dismissed, without costs or disbursements.

The plaintiff's motion, denominated as one for leave to renew and reargue, was not based on new facts which were unavailable to him at the time of the defendant's motion to dismiss and his prior cross motion to restore the case to the trial calendar. Therefore, the motion was, in effect, one for leave to reargue, the denial of which is not appealable (see Ali v Tip Top Tows, 304 AD2d 683 [2003]; Tittman v Rappaport, 287 AD2d 709 [2001]). Prudenti, P.J., Florio, H. Miller, Schmidt and Cozier, JJ., concur.