Opinion
Submitted October 18, 1999
December 2, 1999
In an action pursuant to CPLR 3213 for summary judgment in lieu of complaint, the defendant appeals from (1) an order of the Supreme Court, Nassau County (Schmidt, J.), dated June 9, 1998, which granted the plaintiff's motion and denied his cross motion for summary judgment dismissing the complaint, and (2) an order of the same court, dated October 29, 1998, which denied his motion, in effect, for reargument.
Gambino Hoerter, Brooklyn, N.Y. (Jeffrey A. Hoerter of counsel), for appellant.
LAWRENCE J. BRACKEN, J.P., SONDRA MILLER, WILLIAM C. THOMPSON, WILLIAM D. FRIEDMANN, JJ.
DECISION ORDER
ORDERED that the appeal from the order dated October 29, 1998, is dismissed, as no appeal lies from an order denying reargument; and it is further,
ORDERED that the order dated June 9, 1998, is modified by deleting the provision thereof granting the plaintiff's motion for summary judgment in lieu of a complaint, and substituting therefor a provision denying that motion; as so modified, the order dated June 9, 1998, is affirmed; and it is further,
ORDERED that the defendant is awarded one bill of costs.
Since the defendant's motion, denominated as one for renewal and reargument, was not based upon new evidence which was unavailable at the time of the original motion, the motion was actually one for reargument (see, Citibank v. Olson, 204 A.D.2d 381 ; Chiarella v. Quitoni, 178 A.D.2d 502 ). Therefore, the appeal from the denial of that motion must be dismissed, as no appeal lies from an order denying reargument (see, Schumer v. Levine, 208 A.D.2d 605 ; DeFreitas v. Board of Educ. of City of Mount Vernon Dist. No. 416, 129 A.D.2d 672 ).
The court erred when it granted the plaintiff's motion for summary judgment in lieu of complaint, as issues of fact exist as to whether the plaintiff disposed of the defendant's collateral in a commercially-reasonable manner, and whether the promissory notes at issue were given for valid consideration (see, Ford Motor Credit Co. v. Hernandez, 210 A.D.2d 656 ; BancAmerica Private Brands v. Marine Gallery,, 157 A.D.2d 813 ; Mack Fin. Corp. v. Knoud, 98 A.D.2d 713, 714 ).
BRACKEN, J.P., S. MILLER, THOMPSON, and FRIEDMANN, JJ., concur.