Alexandre v. Davis

• Decision Date: 12 May 1977
• Parties: Dianne Davis ALEXANDRE, Plaintiff-Respondent, v. Joseph E. DAVIS, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 559

394 N.Y.S.2d 559

57 A.D.2d 764

Dianne Davis ALEXANDRE, Plaintiff-Respondent, v. Joseph E. DAVIS, Defendant-Appellant.

Supreme Court of New York, Appellate Division,

First Department.

May 12, 1977

H. R. Slonim, New York City, for plaintiff. H. M. Levy, New York City, for defendant.

Order, Supreme Court, New York County (Fein, J.), entered February 18, 1976, which dismissed defendant's affirmative defenses and counterclaims, granted defendant's motion to dismiss the plaintiff's six causes of action to the extent of dismissing plaintiff's sixth cause of action for attorneys' fees, denied defendant's application for an order of preclusion and for summary judgment and granted plaintiff's motion for summary judgment in the sum of $46,939.20 and judgment of said court, entered February 20, 1976, pursuant to such order, unanimously modified, on the law, to the extent of reducing the sum of $46,939.20 recovered by the plaintiff by $1,704.70, and as so modified, affirmed, without costs and disbursements. The appeal from the order of said court (Fein, J.), dated February 25, 1976, declining to sign defendant's proffered order to show cause requesting reargument and related relief, dismissed as non-appealable. Special Term, inter alia, granted plaintiff's motion to amend and update the ad damnum clause of the amended complaint to $3,639.20 in respect of the third and fourth causes of action for educational and traveling expenses for the issue of the marriage of the parties. The documentary itemization submitted by plaintiff in support of these causes of action as so amended totals $2,621.50 of which amount the sum of $687.00 came from plaintiff's present husband and not from plaintiff. Therefore, plaintiff failed to prove the sum of $1,017.70 to which is added the $687.00 which, not having been paid by plaintiff, is not recoverable. The amount of $46,939.20 recovered by plaintiff on her motion for summary judgment is reduced accordingly and as so modified, the order granting plaintiff summary judgment and the judgment entered pursuant thereto are affirmed for the reasons stated by Special Term (Fein, J.). Justice Fein's declination to sign defendant's proffered order to show cause essentially seeking reargume is, in effect, a denial of reargument, and it is well recognized that a denial of reargument is not appealable.

LUPIANO, J. P., and SILVERMAN, EVANS and MARKEWICH, JJ., concur.