| George v Yoma Dev. Group, Inc. |
| 2011 NY Slip Op 03026 [83 AD3d 776] |
| April 12, 2011 |
| Appellate Division, Second Department |
| Richard George, Appellant, v Yoma Development Group,Inc., et al., Respondents. |
—[*1] Borchert, Genovesi, LaSpina & Landicino, P.C., Whitestone, N.Y. (Helmut Borchert andRobert W. Frommer of counsel), for respondents U.S. Bank National Association, Jennifer E.Lozana Luna, Wells Fargo Bank, N.A., HSBC Bank USA, N.A., and Bank of New York MellonTrust Company, N.A., as successor in interest of Ashmeeda Swezey. Fidelity National Law Group, New York, N.Y. (Paul McGeough of counsel), for respondentWells Fargo Bank, N.A. with respect to the property known as 151 Beach 26th Street, FarRockaway.
In an action, inter alia, for a permanent injunction compelling the defendants to removestructures encroaching upon certain real property upon which the plaintiff allegedly has aneasement, the plaintiff appeals from an order of the Supreme Court, Queens County(Pineda-Kirwan, J.), entered April 27, 2010, which denied that branch of his motion which was,in effect, for leave to reargue a prior motion for summary judgment on his claim for injunctiverelief, and denied that branch of his motion which was for leave to enter a judgment against thedefendants Yoma Development Group, Inc., Impressive Homes, Deutsche Bank National TrustCompany, Thelma T. Rosenblatt, Bity Holding, LLC, Alfio Marcellino, and Zaira Marcellinoupon their default in appearing or answering the complaint.
Ordered that the appeal from so much of the order as denied that branch of the plaintiff'smotion which was, in effect, for leave to reargue is dismissed, as no appeal lies from an orderdenying reargument; and it is further,
Ordered that the order is affirmed insofar as reviewed; and it is further,
Ordered that one bill of costs is awarded to the respondents appearing separately and filingseparate briefs.
The branch of the plaintiff's motion which seeks injunctive relief was denominated as amotion for summary judgment. However, that branch of the plaintiff's motion was, in effect, forreargument of a prior motion for summary judgment, the denial of which is not appealable(see Lapadula v Sang Shing Kwok, 304 AD2d 798 [2003]).[*2]
To establish entitlement to a default judgment, a plaintiffmust submit proof of service of the summons and the complaint, of the facts constituting theclaim, and of the default (see CPLR 3215 [f]; Miterko v Peaslee, 80 AD3d 736 [2011]; Levine v Forgotson's Cent. Auto & Elec.,Inc., 41 AD3d 552, 553 [2007]). Here, in support of that branch of his motion whichwas for leave to enter a default judgment, the plaintiff failed to submit proof of service of thesupplemental summons and second amended complaint. Accordingly, the Supreme Courtproperly denied that branch of the plaintiff's motion which was for leave to enter a judgmentagainst the defendants Yoma Development Group, Inc., Impressive Homes, Deutsche BankNational Trust Company, Thelma T. Rosenblatt, Bity Holding, LLC, Alfio Marcellino, and ZairaMarcellino upon their default in appearing or answering the complaint (see CPLR 3215[f]; cf. 599 Ralph Ave. Dev., LLC v 799Sterling Inc., 34 AD3d 726 [2006]).
The plaintiff's remaining contentions are not properly before this Court. Covello, J.P., Eng,Hall and Roman, JJ., concur.