Johnson v. Banner Int'l Corp.

Decision Date17 February 2015
Citation999 N.Y.S.2d 894 (Mem),125 A.D.3d 498,2015 N.Y. Slip Op. 01399
PartiesErvin JOHNSON, Plaintiff–Appellant, v. BANNER INTERNATIONAL CORP., Defendant–Respondent, “John Doe,” etc., Defendant.
CourtNew York Supreme Court — Appellate Division

125 A.D.3d 498
999 N.Y.S.2d 894 (Mem)
2015 N.Y. Slip Op. 01399

Ervin JOHNSON, Plaintiff–Appellant
“John Doe,” etc., Defendant.

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

Feb. 17, 2015.

Rimland & Associates, New York (Edward Rimland of counsel), for appellant.

Cobert, Haber & Haber, Garden City (David C. Haber of counsel), for respondent.


Appeal from order, Supreme Court, New York County (Arlene P. Bluth, J.), entered October 11, 2013, which denied plaintiff's motion to reargue, denominated a motion to vacate, unanimously dismissed, without costs, as taken from a nonappealable paper.

Plaintiff never filed a notice of appeal from the court's March 22, 2013 order dismissing his complaint pursuant to CPLR 3126. Although denominated a motion to vacate, plaintiff's subsequent motion was, in actuality, one to reargue the prior order that had dismissed his complaint.

999 N.Y.S.2d 895

Accordingly, the order denying plaintiff's subsequent motion is nonappealable (see Steinhardt Group v. Citicorp, 303 A.D.2d 326, 326–327, 757 N.Y.S.2d 537 [1st Dept.2003], lv. denied 100 N.Y.2d 506, 763 N.Y.S.2d 811, 795 N.E.2d 37 [2003] ; Federation of Puerto Rican Orgs. of Brownsville v. Mateo, 235 A.D.2d 326, 652 N.Y.S.2d 954 [1st Dept.1997], lv. dismissed 90 N.Y.2d 844, 660 N.Y.S.2d 870, 683 N.E.2d 776 [1997] ). If we were to review the order, we would affirm the denial of the subsequent motion, as plaintiff failed to provide a reasonable excuse for his noncompliance with the court's numerous discovery orders (see Gibbs v. St. Barnabas Hosp., 16 N.Y.3d 74, 80, 917 N.Y.S.2d 68, 942 N.E.2d 277 [2010] ).


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