| Matter of County of Broome |
| 2011 NY Slip Op 09056 [90 AD3d 1260] |
| December 15, 2011 |
| Appellate Division, Third Department |
| In the Matter of the Foreclosure of Tax Liens by County of Broome.County of Broome, Respondent; Martha G. Cafferty, as Executor of Peter G. Cafferty, Deceased.Appellant. |
—[*1] Joseph Sluzer, County Attorney, Binghamton (Robert G. Behnke of counsel), forrespondent.
Egan Jr., J. Appeal from an order of the County Court of Broome County (Smith, J.), enteredApril 7, 2010, which denied respondent's motion to modify a prior order of the court.
In 1998, petitioner commenced this foreclosure proceeding to satisfy outstanding realproperty taxes due on various parcels of land then owned by Peter G. Cafferty (hereinafterdecedent). Although petitioner and decedent thereafter entered into an agreement for payment ofthe delinquent taxes, decedent ultimately failed to comply with the terms thereof and, in October2003, County Court granted petitioner's motion for summary judgment seeking to foreclose ondecedent's properties. Decedent apparently filed a notice of appeal from the resulting judgment offoreclosure but, instead of perfecting the underlying appeal, he commenced a separate action inSupreme Court seeking to vacate the judgment of foreclosure and contending, among otherthings, that County Court lacked jurisdiction (Cafferty v Cahill, 53 AD3d 1007, 1007 n 1 [2008], appealdismissed and lv denied 11 NY3d 861 [2008]). Supreme Court granted petitioner'ssubsequent motion to dismiss, finding that decedent's various claims were either time-barred,[*2]lacking in merit or precluded by the doctrines of res judicataand collateral estoppel. Upon decedent's appeal, this Court affirmed (see id.).
In December 2008, decedent moved pursuant to CPLR 5015 (a) (4) to vacate the judgment offoreclosure and, when County Court denied the requested relief, decedent sought review in thisCourt pursuant to CPLR 5704. After this Court denied decedent's motion, he again moved tovacate the judgment of foreclosure. County Court denied decedent's second CPLR 5015application in December 2009[FN1] and, in January 2010, decedent moved pursuant to CPLR 2221 to modify County Court'sDecember 2009 order. County Court denied decedent's application, prompting thisappeal.[FN2]
We agree with petitioner that respondent's appeal is not properly before us. Althoughcouched as a motion to "modify" County Court's December 2009 order, it is apparent from areview of the record that decedent's CPLR 2221 motion was in fact a motion to reargue.Decedent "failed to present any new facts or change in the law that would require a differentdetermination" (Marquis vWashington, 85 AD3d 1338, 1338 [2011]) and, indeed, sought nothing more than toonce again convince County Court that it erroneously granted the judgment of foreclosure in thefirst place. As no appeal lies from the denial of a motion to reargue (see id.; Matter of Biasutto v Biasutto, 75 AD3d671, 672 [2010]; Matter of Suzannev Suzanne, 69 AD3d 1011, 1012 [2010]; Matter of Hoover v Derry, 3 AD3d 659, 659 [2004]), respondent'sappeal must be dismissed. Accordingly, we need not address the alternative grounds for dismissaladvanced by petitioner—namely, that decedent's application is barred by the doctrines ofres judicata and collateral estoppel.
Peters, J.P., Spain, McCarthy and Garry, JJ., concur. Ordered that the appeal is dismissed,without costs.
Footnote 1: The order in question iserroneously dated December 18, 2008 and should not be confused with County Court's December12, 2008 order denying decedent's original application to vacate the judgment of foreclosure.
Footnote 2: Following decedent's death inJanuary 2011, respondent was appointed as executor of his estate, and this Court granted hersubsequent motion for substitution.