Manna v. Ades

• Decision Date: 03 March 1997
• Docket Number: No. 2,No. 1,1,2
• Citation: 655 N.Y.S.2d 412,237 A.D.2d 264
• Parties: Pasquale MANNA, Appellant, v. Paul R. ADES, Respondent. (Action). MANNA FUEL OIL CORP., Appellant, v. Paul R. ADES, Respondent. (Action).
• Court: New York Supreme Court — Appellate Division

Page 412

655 N.Y.S.2d 412

237 A.D.2d 264

Pasquale MANNA, Appellant, v. Paul R. ADES, Respondent. (Action No. 1).

MANNA FUEL OIL CORP., Appellant, v. Paul R. ADES, Respondent. (Action No. 2).

Supreme Court of New York, Appellate Division Second Department.

March 3, 1997.

Jeffrey Levitt, Amityville, for appellants.

Wilson, Elser, Moskowitz, Edelman & Dicker, New York City (Mark Anesh, Edward A. Magro, and Patricia A. Essoff, of counsel), for respondent.

In related actions to recover damages, inter alia, for fraud and violation of Judiciary Law § 487(1), (1) Pasquale Manna, the plaintiff in Action No. 1 appeals from a judgment of the Supreme Court, Suffolk County (Floyd, J.), entered January 3, 1996, in Action No. 1, which, upon an order granting the defendant's motion to dismiss, dismissed the complaint, and (2) Pasquale Manna and Manna Fuel Oil Corp., the plaintiffs in Actions Nos. 1 and 2 appeal (a) as limited by their brief, from so much of an order of the same court, dated August 15, 1994, as directed the defendant in both actions to produce certain files for in camera inspection, (b) from an order of the same court, dated December 30, 1994, which, following an in camera inspection, determined that certain of the defendant's documents constituted attorney work product and were exempt from disclosure, (c) from a decision of the same court, dated February 1, 1995, which denied their request that the court identify those documents it deemed exempt from disclosure, and (d) as limited by their brief, from so much of an order of the same court, dated December 13, 1995, as denied the branch of their cross motion which was for reargument of the order dated December 30, 1994.

ORDERED that the judgment is affirmed; and it is further,

ORDERED that the appeals from the orders dated August 15, 1994, and December 30, 1994, are dismissed for failure to provide an adequate record on the appeals (see, CPLR 5526; 22 NYCRR 670.10[b] ); and it is further,

ORDERED that the appeal from the decision dated February 1, 1995, is dismissed, as no appeal lies from a decision (see, Ojeda v. Metropolitan Playhouse, 120 A.D.2d 717, 502 N.Y.S.2d 776); and it is further,

ORDERED that the appeal from order dated December 13, 1995, is dismissed insofar as appealed from, as no appeal lies from an order denying reargument; and it is further,

ORDERED that the defendant is awarded one bill of costs.

The appeals from the orders dated August 15, 1994, and December 30, 1994, must be dismissed because the appellants failed to include in the record the papers and other exhibits upon which the orders were founded (see, CPLR 5526; 22 NYCRR 670.10[b]; Matter of Matthews v. Board of Elections of the City of N.Y., 119 A.D.2d 783, 501 N.Y.S.2d 610). The plaintiffs' motion denominated as a motion for reargument and renewal was not based upon new facts which were unavailable at the time of the original motion and was therefore actually a motion to reargue, the denial of which is not appealable (see, Huttner v. McDaid, 151 A.D.2d 547, 543 N.Y.S.2d 916; Mgrditchian v. Donato, 141 A.D.2d 513, 529 N.Y.S.2d 134). Therefore, the appeal from so much of the order dated December 13, 1995, as denied that motion must be dismissed (see, Jacondino v. Lovis, 186 A.D.2d 109, 110, 587 N.Y.S.2d 696; (Bell-Tronics Communications v. Winkler, 178 A.D.2d 455, 457, 577 N.Y.S.2d 126).

The court properly dismissed the complaint in Action No. 1. Pasquale Manna, the plaintiff in Action...