Crawn v. Sayah , 819 N.Y.S.2d 61 ( 2006 )

In an action, inter alia, to cancel a deed and set aside a conveyance of real property, the plaintiff appeals from (1) so much of an order of the Supreme Court, Westchester County (Colabella, J.), entered March 4, 2005, as granted those branches of the defendant’s motion which were for summary judgment dismissing the first and second causes of action in the amended complaint, and (2) an order of the same court entered May 2, 2005, which denied her motion, denominated as one for leave to renew and reargue, but which, in actuality, was for leave to reargue those branches of the defendant’s motion which were for summary judgment dismissing the first and second causes of action in the amended complaint.

Ordered that the appeal from the order entered May 2, 2005 is dismissed, as no appeal lies from an order denying reargument; and it is further,

Ordered that the order entered March 4, 2005 is affirmed insofar as appealed from; and it is further,

Ordered that one bill of costs is awarded to the defendant.

The plaintiffs motion, denominated as one for leave to renew and reargue those branches of the defendant’s motion which were for summary judgment dismissing the first and second causes of action in the amended complaint, was not based upon new facts which were unavailable at the time of the prior motion. In addition, the plaintiff failed to offer a valid excuse as to why the evidence offered in support of her motion for leave to renew and reargue was not submitted in opposition to the defendant’s motion. Therefore, the motion, though denominated as a motion for leave to renew and reargue, was in fact a motion for leave to reargue, the denial of which is not appealable (see Rivera v Toruno, 19 AD3d 473 [2005]; Koehler v Town of Smithtown, 305 AD2d 550 [2003]; Sallusti v Jones, 273 AD2d 293, 294 [2000]).

The Supreme Court properly granted those branches of the defendant’s motion which were for summary judgment dismissing the first and second causes of action of the plaintiff’s amended complaint. Contrary to the view of our dissenting colleague, “A party’s competence is presumed and the party asserting incapacity bears the burden of proving incompetence” (Feiden v Feiden, 151 AD2d 889, 890 [1989]; see Smith v Comas, 173 AD2d 535 [1991]; see also Prince, Richardson on Evidence § 3-110 [Farrell 11th ed]). Accordingly, the defendant, through the affirmation of the attorney who prepared the deed and witnessed its execution, met her initial burden of showing that the deed was properly executed. In opposition, the plaintiff failed to raise a triable issue of fact as to the decedent’s mental capacity on the day he signed the deed because the papers submitted in opposition lacked any probative value. Luciano, Lunn and Dillon, JJ., concur.