88-19 193rd Street Realty Corp. v. Morse

In an action to recover damages for breach of contract, the defendants appeal from (1) an order of the Supreme Court, Queens County (Graci, J.), dated September 20, 1989, which granted the plaintiff’s motion to strike their first affirmative defense of lack of personal jurisdiction, and (2), an order of the same court, dated December 5, 1989, which denied their motion for reargument and renewal. Ordered that the appeal from the order dated December 5, 1989, is dismissed, without costs or disbursements; and it is further, Ordered that the order dated September 20, 1989, is affirmed, without costs or disbursements. The Supreme Court properly granted the plaintiff’s motion to strike the defendants’ first affirmative defense of lack of personal jurisdiction premised upon improper service of process, because the plaintiff adequately rebutted the defendants’ sole objection to service. Furthermore, the "new” information presented by the defendants in support of their second motion consisted of additional challenges to service, based on certain requirements set forth in CPLR 308 (2). These arguments were not raised on the initial motion, and the defendants have offered no valid excuse for not doing so. Therefore, the motion was in actuality a motion for reargument. An order denying reargument is not [520] appealable (see, Wodecki v Carty, 167 AD2d 398). Keeper, J. P., Harwood, Rosenblatt and Ritter, JJ., concur.