Cortez v Gersh

Cortez v Gersh 2019 NY Slip Op 01723 Decided on March 12, 2019 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 March 12, 2019
Gische, J.P., Webber, Kern, Singh, JJ.
8680 8679 8678

[*1]Samuel Yovany Casas Cortez, et al., Plaintiffs-Appellants,

v

Damon Gersh individually and doing business as Maxons Restorations, Inc., et al., Defendants-Respondents, Forman Mills, Inc., Defendant. [And a Third Party Action]

Ginarte Gallardo Gonzalez & Winograd LLP, New York (Timothy Norton of counsel), for appellants.

Ford Marrin Esposito Witmeyer & Gleser, LLP, New York (Caroline McKenna of counsel), for respondents.

Appeal from order, Supreme Court, Bronx County (Fernando Tapia, J.), entered August 27, 2018, to the extent it denied plaintiffs' motion to renew an order, same court and Justice, entered September 19, 2017, which granted defendants' motions to dismiss the complaint, unanimously dismissed, without costs.

Plaintiffs are precluded from pursuing this appeal from the denial of the motion to renew, since they did not perfect their prior appeal from the motion to dismiss (Rivera v Ayala, 95 AD3d 622, 622-623 [1st Dept 2012]; Pier 59 Studios, L.P. v Chelsea Piers, L.P., 40 AD3d 363, 366 [1st Dept 2007]).

Even if we were to consider plaintiffs' appeal, we would conclude that the motion court did not abuse its discretion in denying the motion for renewal. The alleged new information was submitted in further support of the motion to dismiss the complaint and plaintiffs did not proffer a reasonable justification for failing to present it on the prior motion to reargue (Farahmand v Dalhousie Univ., 96 AD3d 618, 619 [1st Dept 2012]; CPLR 2221[e]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 12, 2019

CLERK