| Clark v Pfizer, Inc. |
| 2009 NY Slip Op 05743 [64 AD3d 536] |
| July 7, 2009 |
| Appellate Division, Second Department |
| Jerry Clark, Appellant, v Pfizer, Inc.,Respondent. |
—[*1] Jackson Lewis LLP, New York, N.Y. (Kevin G. Lauri and Dana Glick Weisbrod of counsel),for respondent.
In an action, inter alia, to recover damages for harassment, the plaintiff appeals from (1) anorder of the Supreme Court, Kings County (Knipel, J.), dated November 2, 2007, which grantedthe defendant's motion to dismiss the complaint pursuant to CPLR 3211, and (2) an order of thesame court dated March 26, 2008, which denied his motion for leave to reargue his opposition tothe defendant's motion to dismiss the complaint and, in effect, for leave to replead so as to asserta cause of action to recover damages for discrimination in the terms, privileges, and conditionsof employment in violation of Executive Law § 296.
Ordered that the appeal from the order dated November 2, 2007 is dismissed; and it isfurther,
Ordered that the appeal from so much of the order dated March 26, 2008, as denied thatbranch of the plaintiff's motion which was for leave to reargue his opposition to the defendant'smotion is dismissed, as no appeal lies from an order denying reargument; and it is further,
Ordered that the order dated March 26, 2008 is affirmed insofar as reviewed; and it isfurther,
Ordered that one bill of costs is awarded to the defendant.
The defendant correctly contends that the appeal from the order dated November 2, 2007must be dismissed, inasmuch as the plaintiff failed to file a notice of appeal within 35 days afterservice upon him by mail of that order with notice of entry (see CPLR 2103 [b] [2]; [c];5513 [a]; Matter of Wei v New YorkState Dept. of Motor Vehs., 56 AD3d 484, 485 [2008]; Jones Sledzik Garneau & Nardone, LLP vSchloss, 37 AD3d 417 [2007]; Matter of Eagle Ins. Co. v Soto, 254 AD2d 483[1998]).
Moreover, the Supreme Court properly denied that branch of the plaintiff's motion whichwas, in effect, for leave to replead so as to assert a cause of action to recover damages fordiscrimination in the terms, privileges, and conditions of employment in violation of ExecutiveLaw § 296. A motion for leave to replead, although now constituting little more than a"poor substitute" or "arcane alternative" to a motion for leave to amend a pleading under CPLR3025 (b) (Janssen v Incorporated Vil. ofRockville Ctr., 59 AD3d 15, 19 [2008]), is still cognizable and is not expressly"constrained by any time limitation" (id.). Nonetheless, in the matter before us, theproposed complaint, as sought to be repleaded, is palpably insufficient and patently devoid ofmerit (see Lucido v Mancuso, 49AD3d 220, 226-227 [2008]; seealso Barnum v New York City Tr. Auth., 62 AD3d 736 [2009]). Fisher, J.P., Dillon,Covello and Dickerson, JJ., concur.