Farkas v Schwarzenberger

[*1] Farkas v Schwarzenberger 2008 NY Slip Op 50865(U) [19 Misc 3d 137(A)] Decided on April 14, 2008 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 14, 2008
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : WESTON PATTERSON, J.P., GOLIA and RIOS, JJ
2006-1528 K C.

Paul Farkas, Respondent,

against

Helene Schwarzenberger, Appellant, -and- The Estate of Issi Schwarzenberger, Defendant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Karen B. Rothenberg, J.), dated May 2, 2006. The order denied defendant Helene Schwarzenberger's motion which, in effect, sought to vacate a judgment and a lien on real property, and to dismiss the action.

Order affirmed without costs.

In this small claims action sounding in conversion, plaintiff, after a nonjury trial, was awarded a judgment in the principal sum of $844.34. Following an unsuccessful appeal to this court (Farkas v Schwarzenberger, 11 Misc 3d 129[A], 2006 NY Slip Op 50296[U] [App Term, 2d & 11th Jud Dists 2006]), defendant Helene Schwarzenberger moved in the court below for an order seeking, in effect, to vacate the judgment and a lien on real property, and to dismiss the action. Plaintiff opposed the motion. The court below found that, for the most part, the relief sought by Ms. Schwarzenberger was more in the nature of a motion to reargue rather than a motion to renew, and denied that portion of the motion which, in effect, sought reargument. The court also denied the remaining portion of the motion which sought to vacate a lien on real property. The instant appeal ensued.

The order is affirmed. Although Ms. Schwarzenberger is appealing, inter alia, from so much of the order as denied that branch of her motion, in effect, to reargue, and no appeal lies [*2]from an order denying reargument (see Coque v Wildflower Estates Developers, Inc., 31 AD3d 484 [2006]), that branch of the motion should have been treated by the court below as a motion to vacate the judgment pursuant to CPLR 5015 (a). The lower court nonetheless properly denied that branch of the motion as none of the arguments advanced by Ms. Schwarzenberger were sufficient to entitle her to relief from the judgment under CPLR 5015 (a). Furthermore, that branch of defendant's motion which sought to vacate a lien on real property was properly denied by the court as there was no merit to Ms. Schwarzenberger's contentions.

Weston Patterson, J.P., Golia and Rios, JJ., concur.
Decision Date: April 14, 2008