        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

349
CA 13-01393
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, LINDLEY, AND VALENTINO, JJ.


CARMEN BRITT, AND CARMEN BRITT, AS EXECUTOR
OF THE ESTATE OF LULA BAITY, DECEASED,
PLAINTIFF-APPELLANT,

                    V                              MEMORANDUM AND ORDER

BUFFALO MUNICIPAL HOUSING AUTHORITY, ELAINE
GARBE, BISILOLA F. JACKSON, ADMINISTRATOR OF
THE ESTATE OF JERELINE ELIZABETH GIWA, DECEASED,
GRACE MANOR HEALTH CARE FACILITY, INC., DAVID J.
GENTNER, MARY STEPHAN, KATHY RANDALL, TIFFANY
MATTHEWS AND PHILLIP J. RADOS, M.D.,
DEFENDANTS-RESPONDENTS.


LAW OFFICE OF FRANK S. FALZONE, BUFFALO (LOUIS ROSADO OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

COLUCCI & GALLAHER, P.C., BUFFALO (JOHN J. MARCHESE OF COUNSEL), FOR
DEFENDANTS-RESPONDENTS BUFFALO MUNICIPAL HOUSING AUTHORITY, ELAINE
GARBE AND BISILOLA F. JACKSON, ADMINISTRATOR OF THE ESTATE OF JERELINE
ELIZABETH GIWA, DECEASED.

FELDMAN KIEFFER, LLP, BUFFALO (ADAM C. FERRANDINO OF COUNSEL), FOR
DEFENDANTS-RESPONDENTS GRACE MANOR HEALTH CARE FACILITY, INC., DAVID
J. GENTNER, MARY STEPHAN, KATHY RANDALL AND TIFFANY MATTHEWS.

ROACH, BROWN, MCCARTHY & GRUBER, P.C., BUFFALO (ELIZABETH G. ADYMY OF
COUNSEL), FOR DEFENDANT-RESPONDENT PHILLIP J. RADOS, M.D.


     Appeal from an order of the Supreme Court, Erie County (Diane Y.
Devlin, J.), entered February 6, 2013. The order denied the motion of
plaintiff seeking “to renew” and to vacate a prior order.

     It is hereby ORDERED that said appeal is unanimously dismissed
without costs.

     Memorandum: Plaintiff appeals from an order that denied her
motion seeking “to renew” and to vacate a prior order in which Supreme
Court granted the respective motion and cross motions (motions) of
defendants seeking, inter alia, summary judgment dismissing the second
amended complaint against them. We previously dismissed plaintiff’s
appeal from the prior order, determining that, because plaintiff
failed to respond to defendants’ motions or to appear on the return
date for oral argument, the prior order was entered upon plaintiff’s
                                 -2-                          349
                                                        CA 13-01393

default, and no appeal could be taken therefrom (Britt v Buffalo Mun.
Hous. Auth., 109 AD3d 1195, 1196). Although plaintiff characterized
her motion herein as a motion “to renew,” she does not raise a new
question of law or fact (see CPLR 2221 [e] [2]), and thus we conclude
that she sought only leave to reargue (see Hilliard v Highland Hosp.,
88 AD3d 1291, 1292-1293). Inasmuch as no appeal lies from the denial
of a motion seeking leave to reargue, we dismiss the appeal (see id.;
Empire Ins. Co. v Food City, 167 AD2d 983, 984).




Entered:   March 21, 2014                      Frances E. Cafarell
                                               Clerk of the Court
