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U.S. Bank, N.A. v. Russell-Esposito

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


March 30, 2010

U.S. BANK, N.A., ETC., RESPONDENT,
v.
SHERRETH F. RUSSELL-ESPOSITO, APPELLANT.

In an action to foreclose a mortgage, the defendant appeals from an order of the Supreme Court, Queens County (Rios, J.), dated October 15, 2008, which denied her motion, denominated as one for leave to renew and reargue, but which was, in actuality, one for leave to reargue her motion, inter alia, to enjoin the plaintiff from evicting her, which had been determined in an order dated May 9, 2008.

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., FRED T. SANTUCCI, PLUMMER E. LOTT, SANDRA L. SGROI, JJ.

(Index No. 22322/06)

DECISION & ORDER

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

The Supreme Court properly treated the defendant's motion as one for leave to reargue, since the mortgagor failed to offer any new facts not offered on the prior motion (see Karten v Alvarez & Son Transp., Inc., 56 AD3d 528, 529). Rather, the defendant sought the same relief she sought on her prior motion, without proffering any new facts, arguing that the Supreme Court previously had overlooked or misapprehended, in effect, the law or facts (see CPLR 2221[d] [2]; Jones v Amiee Lynn Accessories, 38 AD3d 613, 613). Thus, the appeal must be dismissed, as the denial of reargument is not appealable (see Peralta v All Weather Tire Sales & Serv., Inc., 58 AD3d 823; Jones v Amiee Lynn Accessories, 38 AD3d at 613).

SKELOS, J.P., SANTUCCI, LOTT and SGROI, JJ., concur.

20100330

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