Federated Capital Corp. v Bosco

[*1] Federated Capital Corp. v Bosco 2016 NY Slip Op 51130(U) Decided on July 13, 2016 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 13, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., SOLOMON and ELLIOT, JJ.
2015-1042 RI C

Federated Capital Corporation, as Assignee of ADVANTA BANK CO., Respondent,

against

Michael B. Bosco, Appellant, -and- CASA BOSCO, INC., Defendant.

Appeal from an order of the Civil Court of the City of New York, Richmond County (Theresa M. Ciccotto, J.), entered April 22, 2015. The order denied the motion by defendant Michael B. Bosco for, in effect, leave to reargue and renew his prior motion to vacate a default judgment, which had been denied in an order of the same court entered July 10, 2014.

ORDERED that so much of the appeal as is from the portion of the order that denied the branch of defendant Michael B. Bosco's motion seeking, in effect, leave to reargue his prior motion is dismissed; and it is further,

ORDERED that the order, insofar as reviewed, is affirmed, without costs.

Plaintiff commenced this action to recover payments due under a retail installment contract executed by defendants. A default judgment was entered against defendant Michael B. Bosco ("Bosco") and defendant Casa Bosco, Inc. After this default judgment had been vacated as to Bosco only, another default judgment was entered against him on May 13, 2013. Bosco's motion to vacate that judgment was denied by the Civil Court by order dated July 10, 2014. Bosco subsequently moved, in effect, for leave to reargue and renew his prior motion to vacate the default judgment entered against him on May 13, 2013. The Civil Court denied this motion by order dated April 22, 2015, and this appeal ensued.

So much of the appeal as is from the portion of the order that denied the branch of Bosco's motion seeking, in effect, leave to reargue his prior motion must be dismissed, as no appeal lies from an order denying a motion for leave to reargue (see Bermudez v City of New York, 66 AD3d 724 [2009]; Malik v Campbell, 289 AD2d 540 [2001]).

In support of the branch of his motion seeking, in effect, leave to renew his prior motion, Bosco needed to proffer either new facts which were unavailable at the time of the prior motion or a reasonable justification for the failure to have presented such facts on the prior motion (CPLR 2221 [e]; see Deutsche Bank Natl. Trust Co. v Matheson, 77 AD3d 883 [2010]). Bosco [*2]failed to do either.

Accordingly, the order, insofar as reviewed, is affirmed.

Pesce, P.J., Solomon and Elliot, JJ., concur.

Decision Date: July 13, 2016