Law Offs. of James Briscoe W., PLLC v Merin

[*1] Law Offs. of James Briscoe W., PLLC v Merin 2017 NY Slip Op 51349(U) Decided on October 11, 2017 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 11, 2017
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Shulman, Gonzalez, JJ.
570232/17

The Law Offices of James Briscoe West, PLLC, and James Briscoe West, Plaintiffs-Appellants,

against

Jennifer Merin, Defendant-Respondent.

Plaintiffs appeal an order of the Civil Court of the City of New York, New York County (Paul A. Goetz, J.), entered June 15, 2016, which denied their second motion for summary judgment.

Per Curiam.

Appeal from order (Paul A. Goetz, J.), entered June 15, 2016, dismissed, without costs, as nonappealable.

Plaintiffs, an attorney and his law firm, commenced this action to recover fees for legal services rendered to defendant. Plaintiffs previously moved for summary judgment seeking the outstanding balance of fees owed as well as "legal fees incurred" in this action (fees on fees), the latter request being pursuant to a provision of the governing retainer agreement allowing the "prevailing party" to recover legal fees incurred in collecting its fee. In an unappealed order dated January 19, 2016, Civil Court (William Franc Perry, J.), awarded plaintiffs summary judgment in the amount of $5,855, the amount reflected in an unpaid invoice, but implicitly denied plaintiffs' request for fees on fees. Plaintiffs then made a second motion, denominated as one for summary judgment on the fourth cause of action, seeking the same fees on fees implicitly denied by Judge Perry.

Since plaintiffs' second motion for summary judgment "was simply a repeat of [their prior] motion to Judge [Perry], it was, in fact, a motion for reargument" (Cherchio v Alley, 111 AD2d 541, 542 [1985]; see Children's Vil. v Greenburgh Eleven Teachers' Union Fedn. of Teachers, Local 1532, AFT, AFL-CIO, 232 AD2d 355 [1996]; Minott v Nurse, 167 AD2d 334 [1990]; see also U.S. Bank, N.A. v Russell-Esposito, 71 AD3d 1127 [2010]), the denial of which is not appealable (see Foley v Roche, 68 AD2d 558 [1979]; Leckey v McQuade, 13 AD2d 682, 683 [1961]). Accordingly, the appeal is dismissed. "To hold otherwise would permit a party to extend the time to take an appeal indefinitely by simply remaking an unsuccessful motion before a different Justice" (Cherchio v Alley, 111 AD2d at 542).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: October 11, 2017