Hendricks v. Simmons

Burnell Hendricks, Plaintiff-Appellant, against James Simmons, Defendant-Respondent. Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Alexander M. Tisch, J.), dated August 4, 2015, which denied his motion to reargue, denominated a motion to vacate a prior order granting defendant's preanswer motion to dismiss the complaint. Per Curiam. Appeal from order (Alexander M. Tisch, J.), dated August 4, 2015, dismissed, without costs, as taken from a nonappealable paper. Plaintiff never filed a notice of appeal from the court's March 11, 2015 order dismissing his complaint. Although denominated a motion to vacate, plaintiff's subsequent motion was, in actuality, one to reargue the prior order that had dismissed his complaint. Accordingly, the order denying plaintiff's subsequent motion is nonappealable (see Johnson v Banner Intl. Corp., 125 AD3d 498 [2015]). THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. I concur I concur I concur Decision Date: December 20, 2017