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Strancewilko v. Martin

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


April 13, 2010

WALTER STRANCEWILKO, APPELLANT,
v.
NEILS P. MARTIN, RESPONDENT, ET AL., DEFENDANTS.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Schulman, J.), dated August 6, 2008, which denied his motion for leave to renew and reargue his motion, in effect, to vacate the automatic dismissal of the action pursuant to CPLR 3404 and to restore the action to the trial calendar.

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.

WILLIAM F. MASTRO, J.P., HOWARD MILLER, LEONARD B. AUSTIN SHERI S. ROMAN, JJ.

(Index No. 23121/03)

DECISION & ORDER

ORDERED that the appeal from so much of the order as denied that branch of the plaintiff's motion which was for leave to reargue is dismissed, as no appeal lies from an order denying reargument; and it is further,

ORDERED that the order is affirmed insofar as reviewed; and it is further,

ORDERED that one bill of costs is awarded to the defendant Neils P. Martin.

The Supreme Court properly denied that branch of the plaintiff's motion which was for leave to renew his motion, inter alia, to restore the action to the trial calendar based on new evidence, as the evidence proffered would not have changed the original determination (see CPLR 2221[e]; Garfinkle Ltd. Partnership II v 11 Mecox Bay Inn, Inc., 52 AD3d 467).

MASTRO, J.P., MILLER, AUSTIN and ROMAN, JJ., concur.

20100413

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