Malik v. New York City Housing Authority

—In an action, inter alia, to recover damages for wrongful death, the plaintiffs appeal from (1) an order of the Supreme Court, Kings County (Vaughan, J.), dated March 27, 2000, which, inter alia, granted the defendant’s motion pursuant to CPLR 3211 to dismiss their action with prejudice, and (2) an order of the same court dated June 8, 2000, which denied their motion, denominated as one to renew and reargue but which was, in fact, for leave to reargue the prior motion for dismissal.

Ordered that the appeal from the order dated June 8, 2000 is dismissed, as no appeal lies from an order denying reargument; and it is further,

Ordered that the order dated May 27, 2000, is affirmed; and it is further,

Ordered that the respondent is awarded one bill of costs.

The Supreme Court properly granted the defendant’s motion to dismiss the complaint. At the time of the motion, neither the plaintiff Sharon Morris nor the Public Administrator of Kings County, whom the plaintiffs attempted to substitute for Morris, had been duly appointed as administrator of the decedent’s estate within the applicable Statute of Limitations or the time provided in the parties’ so-ordered stipulation of May 1999. Therefore, the plaintiffs lacked the capacity to bring the action (see, Deutsch v LoPresti, 272 AD2d 506, 507; LaBoy v Children’s Hosp., 249 AD2d 944).

The plaintiffs’ motion, characterized as one for renewal and reargument of the prior motion to dismiss, was not based upon new facts which were unavailable at the time of the prior motion. In addition, the plaintiffs failed to offer a valid excuse as to why the documents offered upon their motion to “renew and reargue” were not submitted in opposition to the prior motion. Therefore, the motion to “renew and reargue” was in fact a motion for leave to reargue the prior motion, the denial of which is not appealable (see, Sallusti v Jones, 273 AD2d 293, 294). Santucci, J. P., Florio, H. Miller and Townes, JJ., concur.