ESTATE OF MALIK v. N.Y.C. HOUSING AUTH

ORDERED that the appeal from the order dated June 8, 2000 is dismissed, as no appeal lies from an order denying reargument; and it is further,

ORDERED that the order dated May 27, 2000, is affirmed; and it is further,

ORDERED that the respondent is awarded one bill of costs.

The Supreme Court properly granted the defendant's motion to dismiss the complaint. At the time of the motion, neither the plaintiff Sharon Morris nor the Public Administrator of Kings County, whom the plaintiffs attempted to substitute for Morris, had been duly appointed as administrator of the decedent's estate within the applicable Statute of Limitations or the time provided in the parties' so-ordered stipulation of May 1999. Therefore, the plaintiffs lacked the capacity to bring the action (see, Deutsch v. LoPresti, 272 A.D.2d 506, 507; LaBoy v. Children's Hosp. of Buffalo, 249 A.D.2d 944).

The plaintiffs' motion, characterized as one for renewal and reargument of the prior motion to dismiss, was not based upon new facts which were unavailable at the time of the prior motion. In addition, the plaintiffs failed to offer a valid excuse as to why the documents offered upon their motion to "renew and reargue" were not submitted in opposition to the prior motion. Therefore, the motion to "renew and reargue" was in fact a motion for leave to reargue the prior motion, the denial of which is not appealable (see, Sallusti v. Jones, 273 A.D.2d 293, 294).

SANTUCCI, J.P., FLORIO, H. MILLER and TOWNES, JJ., concur.