Johnson v. Banner International Corp.

Johnson v Banner Intl. Corp. (2015 NY Slip Op 01399)

Johnson v Banner Intl. Corp.

2015 NY Slip Op 01399

Decided on February 17, 2015

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 February 17, 2015
Gonzalez, P.J., Acosta, Saxe, Manzanet-Daniels, Clark, JJ.

106510/11

[*1]14234N Ervin Johnson, Plaintiff-Appellant, —

v

Banner International Corp., Defendant-Respondent, "John Doe," etc., Defendant.

Rimland & Associates, New York (Edward Rimland of counsel), for appellant.

Cobert, Haber & Haber, Garden City (David C. Haber of counsel), for respondent.

Appeal from order, Supreme Court, New York County (Arlene P. Bluth, J.), entered October 11, 2013, which denied plaintiff's motion to reargue, denominated a motion to vacate, unanimously dismissed, without costs, as taken from a nonappealable paper.

Plaintiff never filed a notice of appeal from the court's March 22, 2013 order dismissing his complaint pursuant to CPLR 3126. Although denominated a motion to vacate, plaintiff's subsequent motion was, in actuality, one to reargue the prior order that had dismissed his complaint. Accordingly, the order denying plaintiff's subsequent motion is nonappealable (see Steinhardt Group v Citicorp, 303 AD2d 326, 326-327 [1st Dept 2003], lv denied 100 NY2d 506 [2003]; Federation of Puerto Rican Orgs. of Brownsville v Mateo, 235 AD2d 326 [1st Dept 1997], lv dismissed 90 NY2d 844 [1997]). If we were to review the order, we would affirm the denial of the subsequent motion, as plaintiff failed to provide a reasonable excuse for his noncompliance with the court's numerous discovery orders (see Gibbs v St. Barnabas Hosp., 16 NY3d 74, 80 [2010]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 17, 2015

CLERK