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Kozak v. Deb Deb

August 18, 2009

OLGA KOZAK, APPELLANT,
v.
DEB DEB, LLC, ET AL., RESPONDENTS.



In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Balter, J.), dated March 19, 2008, which denied her motion, denominated as one for leave to renew and reargue, but which was, in actuality, one for leave to reargue the defendants' motion pursuant to CPLR 4401, made at the close of evidence, to dismiss the complaint as a matter of law for failure to establish a prima facie case.

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.

PETER B. SKELOS, J.P., JOSEPH COVELLO, RUTH C. BALKIN and JOHN M. LEVENTHAL, JJ.

(Index No. 22710/05)

DECISION & ORDER

ORDERED that the appeal is dismissed, without costs or disbursements.

The appeal must be dismissed. The plaintiff's motion, denominated as one for leave to renew and reargue, was, in actuality, one for leave to reargue, because it was not based on new facts (see CPLR 2221[d][2], [e][2]; Dess v LRM Bldrs., LLC, 56 AD3d 716). An order denying a motion for leave to reargue is not appealable (see Dess v LRM Bldrs., LLC, 56 AD3d at 717).

SKELOS, J.P., COVELLO, BALKIN and LEVENTHAL, JJ., concur.

20090818

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