Kitchen v. Crotona Park W. Hous. Dev. Fund Corp.

• Decision Date: 13 December 2016
• Citation: 41 N.Y.S.3d 885 (Mem),145 A.D.3d 521,2016 N.Y. Slip Op. 08323
• Parties: William KITCHEN, Plaintiff–Respondent, v. CROTONA PARK WEST HOUSING DEVELOPMENT FUND CORPORATION, et al., Defendants–Appellants.
• Court: New York Supreme Court — Appellate Division

145 A.D.3d 521

41 N.Y.S.3d 885 (Mem)

2016 N.Y. Slip Op. 08323

William KITCHEN, Plaintiff–Respondent,

v.CROTONA PARK WEST HOUSING DEVELOPMENT FUND CORPORATION, et al., Defendants–Appellants.

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

Dec. 13, 2016.

Perry, Van Etten, Rozanski & Primavera, LLP, New York (Amara S. Faulkner of counsel), for appellants.

Simon Eisenberg & Baum, LLP, New York (Eric M. Baum of counsel), for respondent.

Appeal from order, Supreme Court, Bronx County (Elizabeth A. Taylor, J.), entered October 21, 2015, which, in this action for personal injuries sustained when part of the ceiling in plaintiff's apartment fell on his head, denied defendants' motion to reargue, unanimously dismissed, without costs, as taken from a nonappealable order.

Following the filing of a note of issue, defendants moved for summary judgment dismissing the complaint. Supreme Court denied the motion because it was untimely and defendants had failed to demonstrate good cause to excuse the untimeliness (see Brill v. City of New York, 2 N.Y.3d 648, 652, 781 N.Y.S.2d 261, 814 N.E.2d 431 [2004] ); defendants did not appeal from that order.

Defendants moved to reargue and the court denied the motion. Defendants' appeal from that order must be dismissed since no appeal lies from the denial of a motion for reargument (see D'Alessandro v. Carro, 123 A.D.3d 1, 7, 992 N.Y.S.2d 520 [1st Dept.2014] ). Furthermore, since defendants did not appeal from the order that denied their motion for summary judgment, their arguments on the merits are not properly before this Court (see D'Andrea v. Hutchins, 69 A.D.3d 541, 892 N.Y.S.2d 761 [1st Dept.2010] ).

TOM, J.P., FRIEDMAN, SAXE, FEINMAN, KAHN, JJ., concur.