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Kitchen v. Diakhate

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


December 17, 2009

CYNTHIA KITCHEN, PLAINTIFF-APPELLANT,
v.
MAMADOU L. DIAKHATE, DEFENDANT-RESPONDENT,
ELICER DIAZ, ET AL., DEFENDANTS.

Appeal from order, Supreme Court, Bronx County (Howard R. Silver, J.), entered February 9, 2009, to the extent it denied plaintiff's motion to reargue an in limine order precluding certain evidence, unanimously dismissed, without costs, as taken from a non-appealable paper.

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.

Gonzalez, P.J., Mazzarelli, Nardelli, Acosta, RomÁn, JJ.

16717/04

Denial of a motion to reargue is not appealable as of right (Freeman v Prince Leasing Corp., 49 AD3d 455 [2008]). This motion clearly sought reargument, not vacatur, as it was alternatively denominated (see People v American Motor Club, 241 AD2d 409 [1997]).

Were we to consider the appeal on the merits, we would affirm the preclusion of evidence concerning plaintiff's knee injury, as the undue 21/2-year delay in correcting her deposition testimony until the eve of trial was prejudicial to defendants.

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

20091217

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