| Doscher v Doscher |
| 2008 NY Slip Op 07084 [54 AD3d 890] |
| September 23, 2008 |
| Appellate Division, Second Department |
| Susan Doscher, Respondent, v Jude Drew Doscher,Appellant. |
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In an action for a divorce and ancillary relief, the defendant appeals, by permission, from anorder of the Supreme Court, Nassau County (Ross, J.), entered November 8, 2007, which grantedthe plaintiff's application for leave to renew and reargue her prior motion pursuant to CPLR 3124to compel him to submit to a deposition, which previously had been denied in an order of thesame court (Marber, J.), dated October 9, 2007, and, upon renewal and reargument, in effect,vacated the order dated October 9, 2007, and granted the plaintiff's motion pursuant to CPLR3124 to compel him to submit to a deposition.
Ordered that the order entered November 8, 2007 is reversed, on the law, with costs, and thematter is remitted to Justice Randy Sue Marber of the Supreme Court, Nassau County, todetermine the plaintiff's application for leave to renew and reargue her motion pursuant to CPLR3124 to compel the defendant to submit to a deposition.
CPLR 2221 (a) provides, inter alia, that any motion for leave to renew or reargue a priormotion shall be made to the judge who signed the order deciding the prior motion, unless thatjudge is unable to hear the motion. "The design of the rule is to prevent a second judge of thesame court from sitting in effect as an appellate court over a colleague" (Siegel, NY Prac §253, at 433 [4th ed]).
Here, Justice Ross improperly entertained the plaintiff's application for leave to renew andreargue her motion to compel the defendant to submit to a deposition, since there was nodemonstration by the plaintiff that the Justice who signed the prior order was no longer availableto entertain the application (see CPLR 2221 [a]). Justice Ross had no authority to rule ona matter already reviewed by another Justice of equal authority, and by ruling on the applicationfor leave to [*2]renew and reargue, Justice Ross, in effect,improperly overruled a court of coordinate jurisdiction (see People v Evans, 94 NY2d499,504 [2000]; Matter of Dondi v Jones, 40 NY2d 8,15 [1976]; Nong Yaw Trakansook v 39 Wood RealtyCorp., 18 AD3d 633 [2005]; Matter of Eisenstadt v Eisenstadt, 277 AD2d 378[2000]; Clearwater Realty Co. v Hernandez, 256 AD2d 100 [1998]). Rivera, J.P.,Spolzino, Dickerson and Eng, JJ., concur.