Ashton v. Morris M. Goldberg, P.C.

• Decision Date: 22 February 1994
• Citation: 612 N.Y.S.2d 866,201 A.D.2d 601
• Parties: Michael ASHTON, Appellant, v. MORRIS M. GOLDBERG, P.C., et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 866

612 N.Y.S.2d 866

201 A.D.2d 601

Michael ASHTON, Appellant, v. MORRIS M. GOLDBERG, P.C., et al., Respondents.

Supreme Court of New York, Appellate Division,

Second Department.

Feb. 22, 1994.

Giaimo & Vreeburg, Kew Gardens (Joseph O. Giaimo, of counsel), for appellant.

Schiavetti, DeVito, Begos & Nicholson, Garden City (Carol Tucci and Marc Lanzkowsky, of counsel), for respondents.

In a medical malpractice action, the plaintiff appeals from (1) an order of the Supreme Court, Nassau County (Robbins, J.), dated January 11, 1991, which granted the defendants' motion pursuant to CPLR 3216 to dismiss the complaint for failure to prosecute, and denied the plaintiff's cross motion for an order of preclusion, and (2) so much of an order of the same court, dated September 11, 1991, as denied the plaintiff's motion, denominated as one for renewal, which was, in fact, for reargument. We deem point I of the respondents' brief a motion to renew the respondents' cross motion to dismiss the appeal from the order dated January 11, 1991, and refer the same to Associate Justices Bracken, Sullivan, Balletta, and Copertino, which, upon renewal, have dismissed that appeal in a decision and order on motion decided herewith.

ORDERED that the appeal from the order dated September 11, 1991, is dismissed, with costs.

Contrary to the plaintiff's contention, the court properly treated his motion to "renew or reargue", dated June 4, 1991, as one for reargument (see, Gurwicz v. Greenberg, 166 A.D.2d 303, 564 N.Y.S.2d 123; McKay v. H.I.P. of Greater N.Y., 163 A.D.2d 280, 558 N.Y.S.2d 561). Since no appeal lies from an order denying reargument, the appeal from the order dated September 11, 1991, is dismissed.

BRACKEN, J.P., and BALLETTA, O'BRIEN and PIZZUTO, JJ., concur.