Key Takeaway
Terio allowed late reargument in its pending-appeal setting. Read the actual ruling, Caputo's 2025 confirmation and the separate appeal-deadline issue.
This article is part of our ongoing procedural issues coverage, with 190 published articles analyzing procedural issues issues across New York State. Attorney Jason Tenenbaum brings 24+ years of hands-on experience to this analysis, drawing from his work on more than 1,000 appeals, over 100,000 no-fault cases, and recovery of over $100 million for clients throughout Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, and the Bronx. For personalized legal advice about how these principles apply to your specific situation, contact our Long Island office at (516) 750-0595 for a free consultation.
Last reviewed: September 2026
Terio allowed a late reargument motion while an appeal was pending. The court exercised discretion; the notice of appeal did not automatically stop the deadline.
Still current (September 2026): 6901 LLC v Caputo cites Terio in upholding discretionary consideration of late reargument during a pending, unperfected appeal; neither decision establishes automatic tolling.
The ruling and its limit
Terio v Spodek, 63 AD3d 719 (2d Dept 2009), approved consideration of Reich’s late reargument motion while his appeal remained pending and unperfected. But the appellate court changed the result reached on reargument: Reich had not established the absence of an attorney-client relationship, so the original denial of his summary-judgment motion should have stood.
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The timing issue and the merits were separate. Caputo’s 2025 discussion, cited above, again approves discretionary consideration in a pending-appeal setting. Filing an appeal is not a substitute for timely motion practice.
CPLR 2221(d)(3) measures the reargument period from service of the order with written notice of entry. CPLR 5513 separately addresses appellate deadlines and service-related additions. Have counsel assess each clock from the actual order and service record; do not assume reconsideration protects an appeal.
Archive wording, corrected
The archive’s earlier conclusion follows. It overstates Terio: the opinion approved discretion in the circumstances, not a toll of reargument or renewal deadlines. Do not use this passage to calculate a deadline.
It follows that as long as a Notice of Appeal has been filed and the appellate brief is unperfected, the 30-day time period to move to reargue or to take advantage of the “change in law” provision in the leave to renew statute remains tolled.
Frequently Asked Questions
Q: What’s the difference between a motion to reargue and a motion to renew?
A: Reargument addresses material already presented that the court allegedly overlooked or misunderstood. Renewal concerns qualifying new facts or a change in law; omitted facts need reasonable justification. A combined motion must support the branches separately.
Q: Can I file both a motion to reargue and a notice of appeal?
A: They can proceed alongside each other when available, but each has its own requirements. Terio approved late reargument in its particular pending-appeal setting; filing an appeal does not guarantee extra time.
Q: What happens if I file a motion to reargue after the 30-day deadline without having filed an appeal?
A: Do not assume the court will entertain it. Caputo recognizes reconsideration authority beyond the statutory period, but its approved exercise involved a pending, unperfected appeal.
Q: How does this rule affect personal injury cases on Long Island?
A: The distinction still matters: identify overlooked material, preserve the order and service record, and assess motion and appeal deadlines separately. Geography does not supply an extension.
Q: Should I always file a notice of appeal to preserve my reargument rights?
A: No. A notice of appeal is not an automatic extension of the reargument period. Counsel should assess whether an appeal is available and how to protect it independently.
Connect to the Encyclopedia
- CPLR 2221: governing rule and related decisions
- Budoff: reargument granted without a different result
- Cuomo v Ferran: reargument in a Medicaid action
- Abrams: diligence after a missing witness was located
- Dookhie: answering an opponent’s new reply argument
- Ferrara: correcting the form of medical proof
For review of a particular motion record or an attorney referral, contact the Law Office of Jason Tenenbaum.
Legal Context
Why This Matters for Your Case
New York law is among the most complex and nuanced in the country, with distinct procedural rules, substantive doctrines, and court systems that differ significantly from other jurisdictions. The Civil Practice Law and Rules (CPLR) governs every stage of civil litigation, from service of process through trial and appeal. The Appellate Division, Appellate Term, and Court of Appeals create a rich and ever-evolving body of case law that practitioners must follow.
Attorney Jason Tenenbaum has practiced across these areas for over 24 years, writing more than 1,000 appellate briefs and publishing over 2,353 legal articles that attorneys and clients rely on for guidance. The analysis in this article reflects real courtroom experience — from motion practice in Civil Court and Supreme Court to oral arguments before the Appellate Division — and a deep understanding of how New York courts actually apply the law in practice.
About This Topic
Procedural Issues in New York Litigation
New York civil procedure governs every stage of litigation — from pleading requirements and service of process to motion practice, discovery deadlines, and trial procedures. The CPLR creates strict procedural rules that can make or break a case regardless of the underlying merits. These articles examine the procedural pitfalls, timing requirements, and strategic considerations that practitioners face in New York state courts, with a particular focus on no-fault insurance and personal injury practice.
190 published articles in Procedural Issues
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Dec 12, 2014Frequently Asked Questions
Common Questions About This Topic
5 answers from the firm's New York personal-injury and employment-law practice. Click any question to expand.
Q: What’s the difference between a motion to reargue and a motion to renew?
A: Reargument addresses material already presented that the court allegedly overlooked or misunderstood. Renewal concerns qualifying new facts or a change in law; omitted facts need reasonable justification. A combined motion must support the branches separately.
Q: Can I file both a motion to reargue and a notice of appeal?
A: They can proceed alongside each other when available, but each has its own requirements. Terio approved late reargument in its particular pending-appeal setting; filing an appeal does not guarantee extra time.
Q: What happens if I file a motion to reargue after the 30-day deadline without having filed an appeal?
A: Do not assume the court will entertain it. Caputo recognizes reconsideration authority beyond the statutory period, but its approved exercise involved a pending, unperfected appeal.
Q: How does this rule affect personal injury cases on Long Island?
A: The distinction still matters: identify overlooked material, preserve the order and service record, and assess motion and appeal deadlines separately. Geography does not supply an extension.
Q: Should I always file a notice of appeal to preserve my reargument rights?
A: No. A notice of appeal is not an automatic extension of the reargument period. Counsel should assess whether an appeal is available and how to protect it independently.
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Disclaimer: This article is published by the Law Office of Jason Tenenbaum, P.C. for informational and educational purposes only. It does not constitute legal advice, and no attorney-client relationship is formed by reading this content. The legal principles discussed may not apply to your specific situation, and the law may have changed since this article was last updated.
New York law varies by jurisdiction — court decisions in one Appellate Division department may not be followed in another, and local court rules in Nassau County Supreme Court differ from those in Suffolk County Supreme Court, Kings County Civil Court, or Queens County Supreme Court. The Appellate Division, Second Department (which covers Long Island, Brooklyn, Queens, and Staten Island) and the Appellate Term (which hears appeals from lower courts) each have distinct procedural requirements and precedents that affect litigation strategy.
If you need legal help with a procedural issues matter, contact our office at (516) 750-0595 for a free consultation. We serve clients throughout Long Island (Huntington, Babylon, Islip, Brookhaven, Smithtown, Riverhead, Southampton, East Hampton), Nassau County (Hempstead, Garden City, Mineola, Great Neck, Manhasset, Freeport, Long Beach, Rockville Centre, Valley Stream, Westbury, Hicksville, Massapequa), Suffolk County (Hauppauge, Deer Park, Bay Shore, Central Islip, Patchogue, Brentwood), Queens, Brooklyn, Manhattan, the Bronx, Staten Island, and Westchester County. Prior results do not guarantee a similar outcome.
