| Bell v New York State Higher Educ. Servs. Corp. |
| 2011 NY Slip Op 09057 [90 AD3d 1261] |
| December 15, 2011 |
| Appellate Division, Third Department |
| John B. Bell, Appellant, v New York State HigherEducation Services Corporation, Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Owen W. Demuth of counsel), forrespondent.
Rose, J. Appeals (1) from an order of the Supreme Court (Egan Jr., J.), entered September16, 2009 in Albany County, which granted defendant's motion to dismiss the complaint, (2) froman order of said court, entered January 15, 2010 in Albany County, which denied plaintiff'smotion for reargument, and (3) from an order of said court (Connolly, J.), entered May 27, 2010in Albany County, which denied plaintiff's motion to vacate the two prior orders of the court.
Plaintiff defaulted on a student loan guaranteed by defendant in the 1970s, and defendantthereafter obtained a judgment against plaintiff in 1984. In October 1997, following several yearsof unsuccessful litigation by plaintiff against defendant and others (see e.g. Bell v New YorkHigher Educ. Assistance Corp., 158 AD2d 305, 306 [1990], appeal dismissed 76NY2d 845 [1990], lv dismissed 76 AD2d 930 [1990]; Bell v New York Higher Educ.Assistance Corp., 140 Misc 2d 229, 229-231 [1988], affd 145 AD2d 1006 [1988],lv dismissed and denied 74 NY2d 623 [1989]), Supreme Court (Wilk, J.) issued an orderpermanently enjoining plaintiff from commencing any further litigation in any court regardingthe loan and declaring all such claims to be barred by the doctrine of res judicata. The FirstDepartment affirmed that order on appeal (Bell v New York Higher Educ. AssistanceCorp., 250 AD2d 496 [1998], appeal dismissed 92 NY2d 876 [1998], appeal andlv dismissed 93 NY2d 920 [1999]). In 1999, when plaintiff again sought damages arising outof the original student loan dispute, the Court of Claims dismissed the claim [*2]as barred by the permanent injunction and res judicata (Bell vState of New York, 277 AD2d 854, 855 [2000], appeal dismissed 96 NY2d 746[2001]). We then affirmed and the Court of Appeals, upon its own motion, imposed sanctions onplaintiff, finding that his further appeal to that court was frivolous and constituted an abuse ofjudicial process (Bell v State of New York, 96 NY2d 811, 811-812 [2001]).
In 2009, plaintiff commenced this action, the gist of which is to again seek to vacate the 1984judgment entered against him. In a September 2009 order, Supreme Court (Egan Jr., J.) granteddefendant's motion to dismiss the complaint. Thereafter, the court denied plaintiff's motion forreargument, finding that he had failed to establish that the law had been misapplied or that anyrelevant fact had been overlooked. In March 2010, plaintiff filed a notice of appeal from both theSeptember 2009 order and the order denying reargument. Plaintiff then moved to vacate bothorders, again reasserting his prior arguments. When Supreme Court (Connolly, J.) denied themotion to vacate, plaintiff filed an amended notice of appeal from all three orders.
Plaintiff's appeal from the September 2009 order was not timely taken and must be dismissed(see CPLR 5513 [a]; Matter ofBrooks v Connolly, 84 AD3d 1612 [2011]; Matter of Hannig v McCoy, 4 AD3d 685, 686 [2004]; Matter ofPravda v New York State Dept. of Motor Vehs, 286 AD2d 838, 838 [2001]). Contrary toplaintiff's contention, our May 2011 motion decision did not previously decide this issue in hisfavor. We held only that his appeal from all three orders was timely perfected, not that the appealfrom the order entered September 2009 was timely taken. Next, inasmuch as plaintiff's motion tovacate was essentially a motion to reargue, and the denial of a motion to reargue is notappealable, his appeals from the other two orders must also be dismissed (see Matter of Biasutto v Biasutto, 75AD3d 671, 672 [2010]; Matter ofSuzanne v Suzanne, 69 AD3d 1011, 1012 [2010]; Brown v Reinauer Transp. Cos., LLC, 67 AD3d 106, 109 n 1[2009], lv dismissed and denied 14 NY3d 823 [2010], cert denied 564 US—, 131 S Ct 3088 [2011]). In any event, plaintiff's assertion that his motion for reargumentwas granted by default is without merit.
Spain, J.P., Kavanagh, Stein and Garry, JJ., concur. Ordered that the appeals are dismissed,with costs.