

Born to Build, LLC v Saleh (2015 NY Slip Op 01233)





Born to Build, LLC v Saleh


2015 NY Slip Op 01233


Decided on February 11, 2015


Appellate Division, Second Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on February 11, 2015
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

WILLIAM F. MASTRO, J.P.
CHERYL E. CHAMBERS
SANDRA L. SGROI
ROBERT J. MILLER, JJ.


2013-04764
2013-08680
 (Index No. 2345/11)

[*1]Born to Build, LLC, appellant, 
vIbrahim Saleh, etc., et al., defendants; Kamel Saleh, nonparty-respondent.


Kazlow & Kazlow, New York, N.Y. (Stuart L. Sanders of counsel), for appellant.

DECISION & ORDER
In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals, as limited by its brief, from (1) so much of an order of the Supreme Court, Nassau County (Bucaria, J.), entered February 25, 2013, as granted the motion of the nonparty Kamel Saleh for leave to reargue his prior motion, in effect, pursuant to CPLR 5239 to vacate certain executions and void certain levies upon three specified parcels of real property, which motion had been denied in an order of the same court entered December 1, 2011, and, upon reargument, granted those branches of the prior motion which were, in effect, pursuant to CPLR 5239 to vacate the executions and void the levies upon the subject parcels of real property located in Manhattan and Astoria, and (2) so much of an order of the same court, entered July 15, 2013, as denied its motion, in effect, pursuant to CPLR 2221 for leave to reargue its opposition to the motion of the nonparty Kamel Saleh for leave to reargue his prior motion, in effect, pursuant to CPLR 5239.
ORDERED that the order entered February 25, 2013, is affirmed insofar as appealed from, without costs or disbursements; and it is further,
ORDERED that the appeal from the order entered July 15, 2013, is dismissed, without costs or disbursements.
Under the circumstances presented in this case, the Supreme Court providently construed nonparty Kamel Saleh's motion as one for reargument. Furthermore, because the evidence in the record supports the court's determination on the merits, the court, upon granting reargument, providently modified its order entered December 1, 2011.
The appeal from the order entered July 15, 2013, must be dismissed because no appeal lies from an order denying reargument (see Poulard v Judkins, 102 AD3d 665, 666).
MASTRO, J.P., CHAMBERS, SGROI and MILLER, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


