| Vasile v Long Is. Power Auth. |
| 2009 NY Slip Op 50581(U) [23 Misc 3d 127(A)] |
| Decided on March 31, 2009 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Appeal from an order of the District Court of Suffolk County, Sixth District (Gigi A.
Spelman, J.), entered January 17, 2008. The order denied plaintiff's motion for leave to renew or
reargue defendants' motions to dismiss the complaint and plaintiff's cross motion for summary
judgment.
Appeal from so much of the order as denied that branch of plaintiff's motion which sought reargument dismissed.
Order, insofar as reviewed, affirmed without costs.
Plaintiff brought this small claims action to recover damages, and to obtain declaratory and injunctive relief, based on defendants' alleged fraud and conspiracy to collect unlawful power supply charges. Defendants' motions to dismiss were granted, and plaintiff's cross motion for summary judgment was denied. Plaintiff appeals from the District Court's subsequent denial of his motion for leave to renew or reargue.
Plaintiff's appeal from so much of the order as denied his motion for reargument must be dismissed as the denial of such a motion is not appealable (see Coque v Wildflower Estates Developers, Inc., 31 AD3d 484 [2006]; Kahlke v Buscemi, 12 AD3d 488 [2004]).
To the extent plaintiff is also appealing from so much of the order as denied the branch of his motion seeking leave to renew, we note that CPLR 2221 (e) (2) provides that a motion for leave to renew a prior motion must be based upon "new facts not offered on the prior motion that would change the prior determination" or must show "that there has been a change in the law that would change the prior determination." Furthermore, the motion papers must contain a "reasonable justification for the failure to present such facts on the prior motion" (CPLR 2221 [e] [*2][3]). In the instant case, plaintiff did not proffer a reasonable justification for his failure to present the facts upon which his renewal motion was based to the motion court on his original cross motion for summary judgment (see T & B Port Washington, Inc. v McDonough, 34 AD3d 785 [2006]; Renna v Gullo, 19 AD3d 472 [2005]). Accordingly, the branch of plaintiff's motion seeking leave to renew was properly denied.
Tanenbaum, J.P., and LaCava, J., concur.
Molia, J., taking no part.
Decision Date: March 31, 2009