Vasile v LILCO (2011 NY Slip Op 50819(U))

Vasile v LILCO

2011 NY Slip Op 50819(U) [31 Misc 3d 140(A)]

Decided on May 3, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.

Carmine F. Vasile, Appellant, NO~ 2010-172 S C

against

LILCO Doing Business as LIPA/KEYSPAN (Now Known as NATIONAL GRID), Respondent.

Appeal from an order of the District Court of Suffolk County, Fifth District (James P. Flanagan, J.), dated December 4, 2009. The order denied plaintiff's motion for leave to reargue and renew his opposition to defendant's prior motion to dismiss the action and his prior cross motion for various forms of relief.

ORDERED that so much of the appeal as is from the portion of the order which denied the branch of plaintiff's motion seeking leave to reargue is dismissed; and it is further,

Plaintiff brought this small claims action to recover the sum of $5,000, alleging that defendant had failed to follow its billing dispute procedures. The District Court granted defendant's motion to dismiss the action and denied plaintiff's cross motion for various forms of relief. Thereafter, plaintiff moved for leave to reargue and renew defendant's prior motion to dismiss the action and his prior cross motion. Plaintiff appeals from the District Court's denial of his motion for leave to reargue and renew.

So much of plaintiff's appeal as is from the portion of the order which denied the branch of his motion seeking leave to reargue is dismissed as the denial of such a motion is not appealable (see Coque v Wildflower Estates Developers, Inc., 31 AD3d 484 [2006]). To the extent that plaintiff seeks appellate review of so much of the order as denied the branch of his motion seeking leave to renew, we note that a motion for leave to renew must be based on "new facts not offered on the prior motion that would change the prior determination" and must contain "reasonable justification for the failure to present such facts on the prior motion" (CPLR 2221 [e]). Plaintiff's newly proffered "facts" were not such as would warrant the granting of leave to renew. Consequently, we hold that in denying that branch of plaintiff's motion, the District Court provided the parties with substantial justice according to the rules and principles of substantive law (UDCA 1804, 1807) and, accordingly, we affirm the order.