Nyack Hosp. v Oak Hill Cemetery

Nyack Hosp. v Oak Hill Cemetery 2019 NY Slip Op 06609 Decided on September 18, 2019 Appellate Division, Second 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 September 18, 2019 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
RUTH C. BALKIN, J.P.
SHERI S. ROMAN
JEFFREY A. COHEN
VALERIE BRATHWAITE NELSON, JJ.
2016-04987
(Index No. 32602/14)

[*1]Nyack Hospital, appellant,

v

Oak Hill Cemetery, defendant third-party plaintiff-respondent, et al., defendants; Cal Mart Enterprises, Inc., third-party defendant-respondent.

Finazzo Cossolini O'Leary Meola & Hager, LLC, New York, NY (Gregory M. McHugh and Robert F. Cossolini of counsel), for appellant.

Burke, Conway & Dillon, White Plains, NY (Michael G. Conway of counsel), for third-party defendant-respondent.

DECISION & ORDER

In an action, inter alia, to recover damages for negligence, the plaintiff appeals from an amended order of the Supreme Court, Rockland County (William A. Kelly, J.), dated May 11, 2016. The amended order denied the plaintiff's motion for leave to reargue its prior motion for leave to serve and file an amended complaint naming an additional defendant, which had been denied in an order of the same court dated January 28, 2016, or, in the alternative, for leave to amend the complaint.

ORDERED that the appeal from so much of the amended order as denied that branch of the plaintiff's motion which was for leave to reargue its prior motion for leave to serve and file an amended complaint is dismissed; and it is further,

ORDERED that the amended order is affirmed insofar as reviewed; and it is further,

ORDERED that one bill of costs is awarded to the third-party defendant-respondent.

The plaintiff commenced this action in 2014 to recover damages relating to flooding that occurred on its property on June 23, 2011, allegedly caused by a negligently constructed drainage swale on the adjacent uphill property, which was owned by the defendant third-party plaintiff, Oak Hill Cemetery. In October 2015, the plaintiff moved, inter alia, for leave to serve and file an amended complaint that would name the third-party defendant, Cal Mart Enterprises, Inc. (hereinafter the contractor), the contractor that allegedly constructed the drainage swale, as an additional defendant. In an order dated January 28, 2016, the Supreme Court denied the motion, determining that the causes of action against the contractor would be time-barred. The plaintiff moved for leave to reargue its prior motion or, in the alternative, for leave to amend the complaint, inter alia, to name the contractor as an additional defendant.

In an amended order dated May 11, 2016, the Supreme Court denied leave to reargue and leave to amend the complaint. The plaintiff appeals from the amended order. In an order dated [*2]June 16, 2016, the Supreme Court purported to grant leave to appeal, in effect, from so much of the amended order as denied reargument (cf. CPLR 5701[c]).

The appeal from so much of the amended order as denied that branch of the plaintiff's motion which was pursuant to CPLR 2221(d) for leave to reargue must be dismissed, as the denial of reargument is not appealable (see Gentry v Mean, 166 AD3d 583; Basile v Wiggs, 117 AD3d 766; DeFritas v Board of Educ. of City of Mount Vernon Dist. No. 416, 129 AD2d 672, 673; Torchio v Nacirema Operating Co., Inc., 283 App Div 675).

The plaintiff's remaining arguments are either without merit or not properly before this Court (see CPLR 5513, 5515; Hecht v City of New York, 60 NY2d 57, 61).

BALKIN, J.P., ROMAN, COHEN and BRATHWAITE NELSON, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court