Hoperman v Seiff

[*1] Hoperman v Seiff 2014 NY Slip Op 51769(U) Decided on December 17, 2014 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 17, 2014
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, P.J., Shulman, Hunter, Jr., JJ.
570098/14

Marilyn Hoperman, Plaintiff-Respondent,

against

Eric Seiff, Defendants-Respondent.

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Robert R. Reed, J.), entered April 23, 2013, which denied her motion, in effect, to reargue a prior order (same court and Judge), entered March 5, 2013, which granted defendant's motion to dismiss the complaint.

Per curiam.

Appeal from order (Robert R. Reed, J.), entered April 23, 2013, dismissed, without costs, as nonappealable.

Plaintiff's motion, although treated by the nisi prius court as one for leave to renew and reargue the grant of defendant's prior dismissal motion, was not based on new facts, and, therefore, was, in actuality, a motion to reargue, the denial of which is not appealable (see CPLR 2221[d][2], [e][2]; Blackwell v Mikevin Mgt. III, LLC, 88 AD3d 836, 838 [2011]). Inasmuch as no appeal was taken from the underlying dismissal order, plaintiff's arguments addressed to that determination are not properly before us (see Gosek v Lunt Theatre Co., 89 AD3d 418 [2011]).

In any event, the action, seeking to enforce the attorney fee arbitration award previously issued in plaintiff's favor pursuant to 22 NYCRR part 137, was properly dismissed, since the award was rendered nonfinal and nonbinding as a result of the plaintiff's own timely filing of a demand for a trial de novo (see 22 NYCRR 137.8; Landa v Dratch, 45 AD3d 646, 647 [2007]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: December 17, 2014