Appeal from an order of the City Court of Mount Vernon, Westchester County (Mark A. Gross, J.), entered October 25, 2010. The order denied defendant Windortech, LLC's motion to vacate a default judgment. The appeal from the order entered October 25, 2010 brings up for review so much of an order of the same court entered May 10, 2011 as, upon reargument, adhered to the prior determination and denied the branch of defendant's motion seeking leave to renew (see CPLR 5517 [b]).

ORDERED that the appeal from the order entered October 25, 2010 is dismissed, as that order was superseded by the order entered May 10, 2011, made upon reargument; and it is further,

ORDERED that the order entered May 10, 2011, insofar as reviewed, is affirmed, without costs.

Plaintiff commenced this breach of contract action against Windortech, LLC (defendant) and others in June 2008. Thereafter, in October 2009, the parties entered into a stipulation whereby defendant was to install windows and a door at plaintiff's property by a date certain or else defendant would be deemed to be in default and plaintiff would be entitled to a $10,000 judgment against defendant. After defendant failed to make the installations by the specified date, and failed to appear at a scheduled pretrial conference, a default judgment was entered in plaintiff's favor on June 14, 2010. Defendant then moved to vacate the default judgment, which motion the City Court denied by order entered October 25, 2010. Defendant subsequently moved for leave to reargue its prior motion and for leave to renew its prior motion on the ground that defendant had a meritorious defense. By order entered May 10, 2011, the court granted the branch of the motion seeking leave to reargue and, upon reargument, adhered to its prior determination, and denied the branch of the motion seeking leave to renew.

It is noted that defendant appeals only from the October 25, 2010 order denying its motion to vacate the default judgment. The appeal from that order, however, brings up for review so much of the May 10, 2011 order as, upon reargument, adhered to the prior determination and denied the branch of defendant's motion seeking leave to renew (see CPLR [*2]5517 [b]). Consequently, the appeal from the October 25, 2010 order is dismissed as superseded. Although defendant's original motion papers arguably advanced an excuse for its default, the papers failed to provide a meritorious defense. Therefore, defendant was not entitled to vacatur pursuant to CPLR 5015 (a) (see Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]) and, thus, we leave undisturbed so much of the order of May 10, 2011 as, upon reargument, adhered to the prior determination. In the branch of its motion seeking leave to renew, defendant set forth, for the first time, what it asserted was a meritorious defense. The City Court, however, correctly denied this branch of defendant's motion since the motion was not based upon additional material facts that existed at the time the previous motion was made but were not known to defendant, and defendant failed to provide any justification for its failure to submit the additional facts on the original motion (see CPLR 2221 [e] [2] Foley v Roche, 68 AD2d 558, 567-568 [1979] Spatola v Tarcher, 293 AD2d 523 [2002]).

Accordingly, the order entered May 10, 2011, insofar as reviewed, is affirmed.

Nicolai, P.J., LaSalle and Marano, JJ., concur.
Decision Date: January 29, 2014