State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: December 8, 2016 522167 

________________________________

MARITA E. HYMAN,

Appellant,

v MEMORANDUM AND ORDER

ALAN J. PIERCE et al.,

Respondents.

________________________________

Calendar Date: October 11, 2016

Before: Peters, P.J., Lynch, Devine, Clark and Aarons, JJ.

__________

Marita E. Hyman, West Edmeston, appellant pro se.

Hancock & Estabrook LLP, Syracuse (Janet D. Callahan of

counsel), for respondents.

__________

Lynch, J.

Appeals (1) from an order of the Supreme Court (Faughnan,

J.), entered March 11, 2015 in Madison County, which, among other

things, partially denied plaintiff's motion to compel discovery,

and (2) from an order of said court, entered April 23, 2015 in

Madison County, which, among other things, denied plaintiff's

motion to reargue.

In March 2013, plaintiff commenced this legal malpractice

action against defendant Alan J. Pierce and his employer, Hancock

and Estabrook, LLP, attorneys she retained to handle an appeal in

a case she had pending before the Second Circuit Court of

Appeals. In April 2014, the parties appeared at a preliminary

conference, and Supreme Court directed that they complete all

discovery by January 21, 2015. On January 5, 2015, plaintiff

moved for an extension of time to complete discovery and to
-2- 522167 

compel defendants to respond to certain document demands. In

support of this motion, plaintiff submitted copies of

correspondence wherein she requested that defendants produce a

"copy of the complete file with an itemized table of contents of

any and all unprivileged correspondences related in any manner"

to her dealings with defendants and provide dates for

depositions. Indisputably, defendants did not produce the

requested documents, asserting that plaintiff already possessed

the requested materials, and no depositions were completed. By

an order entered in March 2015, Supreme Court denied plaintiff's

motion to compel defendants to produce the requested documents,

extended the existing schedule to allow the parties to complete

depositions and directed plaintiff to file a note of issue within

90 days. Plaintiff filed a notice of appeal from this order and

an April 2015 order denying her motion to reargue.

On July 31, 2015, Supreme Court (Cercio Jr., J.) issued an

order directing defendants to provide an electronic copy of the

requested discovery material. Plaintiff does not dispute that

defendants have complied with that order but, instead, asserts

that she was entitled to a paper copy of the documents. Since

plaintiff has obtained copies of the documents that she

requested, albeit in electronic format, we agree with defendants

that plaintiff's appeal from the March 2015 order must be

dismissed as moot (see Matter of Jewett v Ames, 276 AD2d 892, 893

[2000]; Matter of Franklin [International Bus. Machs. Corp.], 215

AD2d 759, 759 [1995]; Middleton v State of New York, 49 AD2d 989,

989 [1975]). 

With regard to the April 2015 order, initially, we find

that Supreme Court (Faughnan, J.) properly treated the motion as

one to reargue because it was "based upon matters of fact or law

allegedly overlooked or misapprehended by the court in

determining the prior motion" (CPLR 2221 [d] [2]).1 While

1 We also reject plaintiff's claim that Justice Faughnan

was required to recuse himself before deciding the motion to

reargue (see Matter of Adams v Bracci, 100 AD3d 1214, 1215

[2012]; Gonzalez v L'Oreal USA, Inc., 92 AD3d 1158, 1159 [2012],

lv dismissed 19 NY3d 874 [2012]). 
-3- 522167 

plaintiff introduced new requests for sanctions in her motion,

the court acknowledged the new claims and considered them

separately at a later date. Accordingly, because the denial of a

motion to reargue is not appealable, the appeal from this order

must also be dismissed (see Matter of Aurigemma v New York State

Dept. of Taxation & Fin., 128 AD3d 1235, 1238 [2015]; Matter of

County of Broome, 90 AD3d 1260, 1261 [2011]). 

Peters, P.J., Devine, Clark and Aarons, JJ., concur.

ORDERED that the appeals are dismissed, as moot, without

costs.

ENTER:

Robert D. Mayberger

Clerk of the Court