Pacella v. Whiteman Osterman & Hanna

In an action, inter alia, to recover damages for legal malpractice, the plaintiff appeals (1), as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Phelan, J.), entered June 16, 2003, as granted that branch of the defendant’s motion which was to dismiss the first cause of action pursuant to CPLR 3211 (a) (1), and (2) from an order of the same court entered December 19, 2003, which denied his motion, in effect, for reargument. Ordered that the appeal from the order entered December 19, 2003, is dismissed, as no appeal lies from an order denying reargument; and it is further, Ordered that the order entered June 16, 2003, is affirmed; and it is further, Ordered that one bill of costs is awarded to the defendant. The Supreme Court properly granted that branch of the defendant’s motion which was to dismiss the first cause of action to recover damages for legal malpractice based upon documentary evidence that conclusively established a defense to the action (see CPLR 3211 [a] [1]; Leon v Martinez, 84 NY2d 83 [1994]). The defendant submitted the transcript of the court proceedings memorializing the terms of the stipulation of settlement of the underlying litigation, in which the defendant represented the plaintiff, which contradicted the claim of mal [546] practice (see Laruccia v Forchelli, Curto, Schwartz, Mineo, Carlino & Cohn, 295 AD2d 321 [2002]; Schwarz v Shapiro, 202 AD2d 187 [1994]). The denial of the motion, in effect, for reargument, is not appealable (see Amsler v Verrilli, 203 AD2d 403, 404 [1994]; Matter of James v Rodriguez, 193 AD2d 990 [1993]; Morgan v Morgan Manhattan Stor. Co., 184 AD2d 366 [1992]; Northern Assur. Co. of Am. v Holden, 179 AD2d 569 [1992]; Chiarella v Quitoni, 178 AD2d 502 [1991]). The plaintiff’s remaining contentions are without merit. Florio, J.P., Krausman, Goldstein and Mastro, JJ., concur.