Freed v Best

Freed v Best 2019 NY Slip Op 06749 Decided on September 25, 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 25, 2019 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
SHERI S. ROMAN, J.P.
SYLVIA O. HINDS-RADIX
JOSEPH J. MALTESE
HECTOR D. LASALLE, JJ.
2016-09067
(Index No. 1247/14)

[*1]Todd E. Freed, et al., respondents,

v

Barbara Best, defendant, Zarko Svatovic, appellant.

Zarko Svatovic, New York, NY, appellant pro se.

Esseks, Hefter, Angel, Di Talia & Pasca, LLP, Riverhead, NY (Anthony C. Pasca and Lisa J. Ross of counsel), for respondents.

In an action, inter alia, in effect, pursuant to RPAPL article 15 to compel the determination of claims to real property, and for injunctive relief, the defendant Zarko Svatovic appeals from an order of the Supreme Court, Suffolk County (Andrew G. Tarantino, Jr., J.), dated May 9, 2016. The order denied that defendant's motion, denominated as one to dismiss the complaint insofar as asserted against him for failure to join necessary parties, but which was, in actuality, a motion for leave to reargue his prior motions for similar relief.

DECISION & ORDER

Cross motion by the plaintiffs, inter alia, to dismiss the appeal on the ground that the order appealed from, in effect, denied reargument. By decision and order on motion of this Court dated January 11, 2017, that branch of the cross motion which is to dismiss the appeal on the ground that the order appealed from, in effect, denied reargument was held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof.

Upon the papers filed in support of the cross motion and the papers filed in opposition thereto, and upon the submission of the appeal, it is

ORDERED that the branch of the cross motion which is to dismiss the appeal on the ground that the order appealed from, in effect, denied reargument is granted; and it is further,

ORDERED that the appeal is dismissed, with costs.

The plaintiffs commenced this action seeking to permanently enjoin the defendants from interfering with the plaintiffs' property rights, a judgment declaring that the defendants have no interest or rights in the property, and damages for trespass. The defendant Zarko Svatovic made a motion, denominated as one to dismiss the complaint insofar as asserted against him for failure to join necessary parties. However, this issue was raised in two prior motions, both of which were denied. The subject motion was, in effect, a motion for leave to reargue, the denial of which is not appealable (see Capital One Bank v Phillips, 161 AD3d 1035, 1036; Schwarz v Schwarz, 150 AD3d 915, 915).

ROMAN, J.P., HINDS-RADIX, MALTESE and LASALLE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court