Bunyan v. Goldwasser

In a negligence action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Queens County (Lerner, J.), dated December 30, 1985, which denied their motion to restore the action to the Trial Calendar, and from an order of the same court, dated March 13, 1986, which denied their motion, in effect, for reargument. Ordered that the appeal from the order dated March 13, 1986 is dismissed, without costs or disbursements, as no appeal lies from an order denying reargument (see, McFadden v Long Is. R. R., 115 AD2d 644); and it is further, Ordered that the order dated December 30, 1985 is affirmed, without costs or disbursements. The plaintiffs failed to advance any excuse which justifies the two-year delay in moving to restore to the Trial Calendar this action stemming from a 1979 automobile accident. Nor is there any competent indication that the injured plaintiff sustained a "serious injury” (see, Insurance Law § 5102 [d]; § 5104 [a]). Under the circumstances, the Supreme Court did not abuse its discretion by refusing to restore this action for trial (cf., Fluman v TSS Dept. Stores, 100 AD2d 838). Thompson, J. P., Bracken, Lawrence and Harwood, JJ., concur.