Encinitas, CA asked in Appeals / Appellate Law for New York

Q: Are you aware of any cases that lost a Motion to Reargue - but was able to perfect an appeal? in NY

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Charles Holster
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  • Appeals & Appellate Lawyer
  • Garden City, NY
  • Licensed in New York

A: A: (This answer clarfies an answer given yesterday). The fact that a motion reargument was denied will not prevent you from following through with your appeal from the original order, so long as you filed a timely notice of appeal from the original order. If you did not do that, it will be too late to do so by the time the reargument motion is denied. You cannot appeal from the order which denied reargument. However, if the order that decided the reargument motion states that reargument is "denied," but it actually GRANTED reargument, in that it addressed the merits of the reargument motion before adhering to its initial decision, then the order will be treated by the Appellate Division as if reargument had been GRANTED, and that order will be appealable. In such cases, the Appellate Division will say in its decision that the lower court's order, "in effect granted" reargument. The other rare situation in which an order which says that "reargument" is "denied" may be appealable is when the motion was actually a motion for RENEWAL, in that it presented NEW FACTS, and stated a justification for not presenting those new facts on the initial motion. In that case, the Appellate Division will say in its decision state that the motion was "in effect, for renewal," and the order which denied it will be appealable.

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