Brito v. Allstate Insurance , 23 N.Y.S.3d 231 ( 2016 )

Brito v Allstate Ins. Co. (2016 NY Slip Op 00296)

Brito v Allstate Ins. Co.

2016 NY Slip Op 00296

Decided on January 19, 2016

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 on January 19, 2016
Mazzarelli, J.P., Acosta, Andrias, Moskowitz, JJ.

16688N 309362/11 16687

[*1] Gregorio Brito, Plaintiff-Appellant,

v

Allstate Insurance Company, Defendant-Respondent.

Linda T. Ziatz, P.C., Forrest Hills (Linda T. Ziatz of counsel), for appellant.

Law Offices of Michael A. Barnett, Garden City (Jay M. Weinstein of counsel), for respondent.

Appeal from order, Supreme Court, Bronx County (Laura G. Douglas, J.), entered on or about April 9, 2015, which denied plaintiff's motion for reargument, denominated as a motion to vacate the order, same court and Justice, entered on or about June 24, 2014, dismissing the complaint for failure to comply with discovery orders, unanimously dismissed, without costs, as taken from a nonappealable paper. Appeal from order, same court and Justice, entered March 25, 2014, which, inter alia, directed plaintiff to provide certain outstanding discovery, unanimously dismissed, without costs, as moot.

In his motion to vacate the June 2014 order, which dismissed the complaint, plaintiff argued that he was not required to provide the discovery he had been directed to provide, because, in an action brought pursuant to Insurance Law § 3420(a)(2), the insurer is limited to disclaiming coverage against the insured, and the discovery demanded by defendant concerned the defenses that would have been available to its insured, if the insured had not defaulted, in the underlying action. However, plaintiff had made this argument before, and the motion court had correctly rejected it in the March 25, 2014 order (see Jimenez v New York Cent. Mut. Fire Ins. Co., 71 AD3d 637, 639 [2d Dept 2010]), which directed plaintiff to provide the discovery that the court had previously directed him to provide in orders with which plaintiff had failed to comply. The court dismissed the complaint after plaintiff failed to comply with the March 25, 2014 order. Instead of appealing from the dismissal order, plaintiff moved to vacate it. Since he advanced the same arguments as the court had rejected in the March 25, 2014 order, the motion to vacate was, in fact, an untimely motion to reargue. The denial of a motion to reargue is not appealable (Lopez v Post Mgt. LLC, 68 AD3d 671 [1st Dept 2009]). The order dismissing the complaint remains in effect, and the appeal from the March 25, 2014 order directing plaintiff to provide discovery is moot.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 19, 2016

CLERK