Northern Leasing Sys., Inc. v Walton

[*1] Northern Leasing Sys., Inc. v Walton 2015 NY Slip Op 50160(U) Decided on February 25, 2015 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 25, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Ling-Cohan, J.
570168/14

Northern Leasing Systems, Inc., Plaintiff-Appellant,

against

Shirley Walton a/k/a Shirley A. Walton a/k/a Shirley Ann Johanson, Defendant-Respondent.

Plaintiff appeals from (1) an order of the Civil Court of the City of New York, New York County (Margaret A. Chan, J.), dated June 25, 2012, which granted defendant's motion to vacate a default judgment and, sua sponte, dismissed the complaint, and (2) an order (same court and Judge), dated July 22, 2013, which denied plaintiff's motion to renew and reargue the aforesaid order.

Per Curiam.

Order (Margaret A. Chan, J.), dated July 22, 2013, insofar as appealable, affirmed, without costs. Appeal from order (Margaret A. Chan, J.), dated June 25, 2012, dismissed, without costs, as untimely (see CPLR 5513[a]).

Plaintiff's motion, insofar as it sought renewal of a prior order which, upon vacating a default judgment previously entered against defendant, dismissed the complaint sua sponte, was properly denied. Plaintiff failed to explain the nearly seven-month delay in moving for renewal (see Matter of Tri-State Consumer Ins. Co. v Singh, 297 AD2d 379 [2002]), and the new evidence relied upon, which addressed an issue raised by the court in the prior order, would not have altered the initial determination (see CPLR 2221[e][2]; Yeshiva Ohr Torah Community School, Inc. v Zurich Am. Ins. Co., 78 AD3d 686 [2010]). To the extent plaintiff seeks review of the denial of its motion seeking reargument, no appeal lies therefrom (see D'Andrea v Hutchins, 69 AD3d 541 [2009]).

Plaintiff's appeal from the underlying dismissal order dated June 25, 2012, is untimely, since the record establishes that although the order with notice of entry was served on January 16, 2013, plaintiff did not file its notice of appeal until October 15, 2013 (see CPLR 5513[a]; Lichtman v Mount Judah Cemetary, 269 AD2d 319 [2000], lv dismissed 95 NY2d 860 [2000]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur
Decision Date: February 25, 2015