| Trahan v Galea |
| 2008 NY Slip Op 01743 [48 AD3d 791] |
| February 26, 2008 |
| Appellate Division, Second Department |
| Betty Jean Trahan, Appellant, v Emanuel F. Galea et al.,Respondents. Laureen Buchanan, Nonparty Respondent. |
—[*1] Thomas G. Sherwood, LLC, Garden City, N.Y. (James P. Truitt III of counsel), forrespondents Emanuel F. Galea and Debra A. Galea. Albanese & Albanese LLP, Garden City, N.Y. (Bruce W. Migatz of counsel), for respondentWashington Mutual Bank, FA.
In an action for the partition and sale of real property, the plaintiff appeals from so much of(1) an order of the Supreme Court, Nassau County (Winslow, J.), dated May 8, 2006, as deniedthat branch of her motion which was for exclusive occupancy of the subject premises from July1, 2005 to October 1, 2005, and (2) an order of the same court entered January 19, 2007, asdenied those branches of her motion, denominated as one for leave to renew and/or reargue, butwhich was, in actuality, one for leave to reargue that branch of her prior motion which was forexclusive occupancy of the subject premises each year from July 1 to October 1, and forsummary judgment dismissing the affirmative defenses.
Ordered that the appeal from the order dated May 8, 2006 is dismissed as academic; and it isfurther,
Ordered that the appeal from so much of the order entered January 19, 2007, as denied thatbranch of the plaintiff's motion, denominated as one for leave to renew and/or reargue, but whichwas, in actuality, one for leave to reargue that branch of her prior motion which was for exclusiveoccupancy of the subject premises each year from July 1 to October 1 is dismissed, as no appeallies from an order denying reargument; and it is further,[*2]
Ordered that the order entered January 19, 2007 isaffirmed insofar as reviewed; and it is further,
Ordered that one bill of costs is awarded to the respondents appearing separately and filingseparate briefs.
The Supreme Court properly denied that branch of the plaintiff's motion which was, in effect,for summary judgment dismissing the defendants' affirmative defenses. The plaintiff failed tomake a prima facie showing of her entitlement to judgment as a matter of law (see Alvarez vProspect Hosp., 68 NY2d 320, 324 [1986]). Triable issues of fact exist, inter alia, as towhether her claim is barred by laches (see Trenton Banking Co. v Duncan, 86 NY 221,230 [1881]; Kraker v Roll, 100 AD2d 424, 432-433 [1984]).
That branch of the plaintiff's motion which was denominated as one for leave to renewand/or reargue that branch of her prior motion which was for exclusive occupancy of the subjectpremises each year from July 1 to October 1, which was denied in the order dated May 8, 2006,was not based on new facts (see CPLR 2221 [e]; Matter of Mattie M. vAdministration for Children's Servs., 48 AD3d 392 [2008]). Therefore, that branch of her motion which was denominated as one for leave torenew and/or reargue was, in actuality, one for leave to reargue, the denial of which is notappealable (see Eight In One Pet Prods. v Janco Press, Inc., 37 AD3d 402 [2007];Rivera v Toruno, 19 AD3d 473, 474 [2005]; Koehler v Town of Smithtown, 305AD2d 550, 551 [2003]).
The plaintiff's claims regarding the court's denial of that branch of her motion which was forexclusive occupancy of the subject premises from July 1, 2005 to October 1, 2005, have beenrendered academic since that period of time has lapsed.
To the extent that the plaintiff raises issues regarding that branch of her motion which was, ineffect, to allow her to inspect the subject premises, we note that such issues are not properlybefore us as that branch of the motion remains pending and undecided (see Katz v Katz,68 AD2d 536, 542-543 [1979]).
The plaintiff's remaining contentions are without merit. Prudenti, P.J., Lifson, Covello andBalkin, JJ., concur.