Gil-Soriano v. Northwind, LLC

Gil-Soriano v Northwind, LLC (2021 NY Slip Op 06322)

Gil-Soriano v Northwind, LLC

2021 NY Slip Op 06322

Decided on November 16, 2021

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: November 16, 2021
Before: Manzanet-Daniels, J.P., Kapnick, Mazzarelli, Moulton, Scarpulla, JJ.
Index No. 27161/19 Appeal No. 14624 Case No. 2021-02123

Sobel Pevzner, LLC, New York (Daniel El Arnaouty of counsel), for appellant.

Steven Adam Rubin & Associates, PLLC, New York (Steven Adam Rubin of counsel), for respondent.

Order, Supreme Court, Bronx County (John R. Higgitt, J.), entered December 16, 2020, which denied defendant's motion to vacate its default under CPLR 5015(a)(1) and/or CPLR 317, unanimously affirmed, without costs.

Defendant's motion, which was its second motion to vacate the same default, was properly denied as barred by the doctrine of law of the case (see Martin v City of Cohoes, 37 NY2d 162, 165 [1975]). Instead of appealing from the order that denied its first motion, defendant moved again to vacate its default, relying on nearly identical facts and arguments (see Colpitts v Cascade Val. Land Corp., 145 AD2d 750, 751 [3rd Dept 1988]). Even if, as defendant now argues, the court had deemed the second motion a motion for reargument (CPLR 2221[d]), that would not alter the result, since the denial of a motion for reargument is not appealable (McCoy v Metropolitan Transp. Auth., 75 AD3d 428, 430 [1st Dept 2010]). Defendant's argument that this motion was a motion for renewal pursuant to CPLR 2221[e] is also unavailing.

In view of the foregoing, we need not reach defendant's arguments on the merits.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: November 16, 2021