Tuesday, February 14, 2012

Appealing a Motion to Reargue

    A recurring error arises in New York when an attorney loses a motion and he wants to appeal the order denying the motion while also moving to reargue in the lower court the motion he lost. 
   There are two simple New York rules to keep in mind: 1) making a motion to reargue does not extend the time to file a notice of appeal from the order denying a motion; and 2) there is no appeal from an order which denies a motion to reargue. 
   I am reminded of this because only last week the Appellate Division, First Department, had occasion to repeat rule 2 in Williams v. Tatham, which can be found here.
   The rules are traps for the unwary: by the time a motion to reargue is decided it will ordinarily be too late to file a notice of appeal from the original order denying the motion.
   What should be done? After a motion is denied file a notice of appeal in accordance with the time limits laid out in CPLR § 5513. Then file the motion for reargument. If the motion for reargument is denied there is no appeal from the denial, but the attorney can still perfect an appeal from the original order because he filed a timely notice of appeal. 
   Final note: if the court grants the motion for reargument but adheres to its original ruling, that order is appealable. See, CPLR § 5701(a)(2)(viii).       

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