George v. Yoma Dev. Grp., Inc.

• Decision Date: 12 April 2011
• Citation: 920 N.Y.S.2d 696,83 A.D.3d 776,2011 N.Y. Slip Op. 03026
• Parties: Richard GEORGE, appellant, v. YOMA DEVELOPMENT GROUP, INC., et al., respondents.
• Court: New York Supreme Court

83 A.D.3d 776

920 N.Y.S.2d 696

Richard GEORGE, appellant,

v.YOMA DEVELOPMENT GROUP, INC., et al., respondents.

Supreme Court, Appellate Division, Second Department, New York.

April 12, 2011.

Richard George, Far Rockaway, N.Y., appellant pro se.

Borchert, Genovesi, LaSpina & Landicino, P.C., Whitestone, N.Y. (Helmut Borchert and Robert W. Frommer of counsel), for respondents U.S. Bank National Association, Jennifer E. Lozana Luna, Wells Fargo Bank, N.A., HSBC Bank USA, N.A., and Bank of New York Mellon Trust Company, N.A., as successor in interest of Ashmeeda Swezey.

Fidelity National Law Group, New York, N.Y. (Paul McGeough of counsel), for respondent Wells Fargo Bank, N.A. with respect to the property known as 151 Beach 26th Street, Far Rockaway.

In an action, inter alia, for a permanent injunction compelling the defendants to remove structures encroaching upon certain real property upon which the plaintiff allegedly has an easement, the plaintiff appeals from an order of the Supreme Court, Queens County (Pineda–Kirwan, J.), enteredApril 27, 2010, which denied that branch of his motion which was, in effect, for leave to reargue a prior motion for summary judgment on his claim for injunctive relief, and denied that branch of his motion which was for leave to enter a judgment against the defendants Yoma Development Group, Inc., Impressive Homes, Deutsche Bank National Trust Company, Thelma T. Rosenblatt, Bity Holding, LLC, Alfio Marcellino, and Zaira Marcellino upon their default in appearing or answering the complaint.

ORDERED that the appeal from so much of the order as denied that branch of the plaintiff's motion which was, in effect, for leave to reargue is dismissed, as no appeal lies from an order denying reargument; and it is further,

ORDERED that the order is affirmed insofar as reviewed; and it is further,

ORDERED that one bill of costs is awarded to the respondents appearing separately and filing separate briefs.

The branch of the plaintiff's motion which seeks injunctive relief was denominated as a motion for summary judgment. However, that branch of the plaintiff's motion was, in effect, for reargument of a prior motion for summary judgment, the denial of which is not appealable ( see Lapadula v. Sang Shing Kwok, 304 A.D.2d 798, 757 N.Y.S.2d 869).

To establish entitlement to a default judgment, a plaintiff must submit proof of service of the summons and the complaint, of the facts constituting the claim, and of the default...