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Britt v. Buffalo Municipal Housing Authority

Supreme Court of New York, Fourth Department

March 21, 2014

CARMEN BRITT, AND CARMEN BRITT, AS EXECUTOR OF THE ESTATE OF LULA BAITY, DECEASED, PLAINTIFF-APPELLANT,
v.
BUFFALO MUNICIPAL HOUSING AUTHORITY, ELAINE GARBE, BISILOLA F. JACKSON, ADMINISTRATOR OF THE ESTATE OF JERELINE ELIZABETH GIWA, DECEASED, GRACE MANOR HEALTH CARE FACILITY, INC., DAVID J. GENTNER, MARY STEPHAN, KATHY RANDALL, TIFFANY MATTHEWS AND PHILLIP J. RADOS, M.D., DEFENDANTS-RESPONDENTS.

Appeal from an order of the Supreme Court, Erie County (Diane Y. Devlin, J.), entered February 6, 2013. The order denied the motion of plaintiff seeking "to renew" and to vacate a prior order.

LAW OFFICE OF FRANK S. FALZONE, BUFFALO (LOUIS ROSADO OF COUNSEL), FOR PLAINTIFF-APPELLANT.

COLUCCI & GALLAHER, P.C., BUFFALO (JOHN J. MARCHESE OF COUNSEL), FOR DEFENDANTS-RESPONDENTS BUFFALO MUNICIPAL HOUSING AUTHORITY, ELAINE GARBE AND BISILOLA F. JACKSON, ADMINISTRATOR OF THE ESTATE OF JERELINE ELIZABETH GIWA, DECEASED.

FELDMAN KIEFFER, LLP, BUFFALO (ADAM C. FERRANDINO OF COUNSEL), FOR DEFENDANTS-RESPONDENTS GRACE MANOR HEALTH CARE FACILITY, INC., DAVID J. GENTNER, MARY STEPHAN, KATHY RANDALL AND TIFFANY MATTHEWS.

ROACH, BROWN, MCCARTHY & GRUBER, P.C., BUFFALO (ELIZABETH G. ADYMY OF COUNSEL), FOR DEFENDANT-RESPONDENT PHILLIP J. RADOS, M.D.

PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, LINDLEY, AND VALENTINO, JJ.

It is hereby ORDERED that said appeal is unanimously dismissed without costs.

Memorandum: Plaintiff appeals from an order that denied her motion seeking "to renew" and to vacate a prior order in which Supreme Court granted the respective motion and cross motions (motions) of defendants seeking, inter alia, summary judgment dismissing the second amended complaint against them. We previously dismissed plaintiff's appeal from the prior order, determining that, because plaintiff failed to respond to defendants' motions or to appear on the return date for oral argument, the prior order was entered upon plaintiff's default, and no appeal could be taken therefrom (Britt v Buffalo Mun. Hous. Auth., 109 A.D.3d 1195, 1196). Although plaintiff characterized her motion herein as a motion "to renew, " she does not raise a new question of law or fact (see CPLR 2221 [e] [2]), and thus we conclude that she sought only leaveto reargue (see Hilliard v Highland Hosp., 88 A.D.3d 1291, 1292-1293). Inasmuch as no appeal lies from the denial of a motion seeking leave to reargue, we dismiss the appeal (see id.; Empire Ins. Co. v Food City, 167 A.D.2d 983, 984).


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