Rhino Recovery, Inc., Appellant,

against

Eileen Rizzuto, Respondent.

 Law Offices of Stanley E. Orzechowski, P.C. (Stanley E. Orzechowski, Esq.), for appellant. Russo & Tambasco (Yamile Al-Sullami, Esq.), for respondent.

Consolidated appeal from orders of the District Court of Suffolk County, Third District (James F. Matthews, J.), dated February 11, 2016 and April 21, 2016, respectively. The order dated February 11, 2016 granted defendant's motion for summary judgment dismissing the complaint. The order dated April 21, 2016 denied plaintiff's motion to disqualify Judge Matthews, and for leave to reargue and renew its opposition to defendant's motion for summary judgment.

ORDERED that so much of the appeal as is from the portion of the order dated April 21, 2016 that denied the branch of plaintiff's motion seeking leave to reargue its opposition to defendant's motion for summary judgment is dismissed; and it is further,

ORDERED that the order dated February 11, 2016, and the order dated April 21, 2016 insofar as reviewed, are affirmed, without costs.

Plaintiff commenced this breach of contract action to recover the principal sum of $12,898.68 for cleanup work it had performed on property allegedly owned by the State of New York, for which, plaintiff claimed, defendant was responsible as a result of defendant's one-car accident. After issue was joined and discovery conducted, defendant moved for summary judgment dismissing the complaint.

In support of her motion, defendant submitted a transcript of the deposition testimony of Scott Egar, an employee of plaintiff. Egar testified that plaintiff had been called to the scene of the accident by a towing company to help it remove defendant's vehicle from New York State property. Egar further testified that defendant had signed a release form stating that she acknowledged the towing fees and additional fees incurred at plaintiff's storage facility. Defendant also relied on her deposition testimony wherein she averred that she had never been advised of any damage to New York State property as a result of the accident and had never spoken to anyone from plaintiff or New York State about repairing any property. In opposition to the motion, plaintiff's counsel submitted an affirmation to which he attached various exhibits [*2]and documents.

By order dated February 11, 2016, the District Court (James F. Matthews, J.) granted defendant's motion for summary judgment dismissing the complaint. Plaintiff, thereafter, moved for the disqualification of Judge Matthews and for leave to reargue and renew its opposition to defendant's motion for summary judgment. In support of the branch of the motion seeking leave to renew, plaintiff submitted "new evidence" showing that defendant's insurer had previously paid out on a remediation claim involving a different insured. Plaintiff's counsel also affirmed that, due to a personal relationship Judge Matthews has with a litigant in an unrelated case, the judge could not be fair and impartial to plaintiff's counsel. In opposition, defense counsel argued, among other things, that defendant's insurer is not a party in the present action, and that defendant's insurer did not pay plaintiff, but rather had paid another entity, that is not a party in this action, on a claim submitted for remediation. Defense counsel stated that such new evidence would not change the outcome of this case. Defense counsel also argued that the prerequisites for disqualification were not satisfied. Plaintiff's motion was denied in its entirety.

The appeal from so much of the order entered April 21, 2016 as denied the branch of plaintiff's motion seeking leave to reargue its opposition to defendant's summary judgment motion must be dismissed, as no appeal lies from an order denying a motion for leave to reargue (see Bermudez v City of New York, 66 AD3d 724 [2009]; Malik v Campbell, 289 AD2d 540 [2001]).

The District Court properly found that the release signed by defendant did not evidence an agreement on her part authorizing plaintiff to perform services for her, aside from towing and storing her vehicle, and that there was no basis for plaintiff to recover under a theory of quantum meruit. To recover in quantum meruit, plaintiff was required, but failed, to establish that the services had been performed in good faith, and had been accepted by the person to whom they had been rendered (see Heller v Kurz, 228 AD2d 263 [1996]). It was uncontroverted that defendant had never entered into any oral agreement with plaintiff.

Moreover, the District Court providently exercised its discretion in denying that branch of plaintiff's motion which sought disqualification of the judge, as plaintiff failed to set forth any proof of bias or prejudice on the part of the court which would have warranted that relief (see Sassower v Gannett Co., Inc., 109 AD3d 607 [2013]; Daniels v City of New York, 96 AD3d 895 [2012]; see also Judiciary Law § 14).

Finally, a motion for leave to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination" (CPLR 2221 [e] [2]) and "shall contain reasonable justification for the failure to present such facts on the prior motion" (CPLR 2221 [e] [3]; see Ramirez v Khan, 60 AD3d 748 [2009]; Lardo v Rivlab Transp. Corp., 46 AD3d 759 [2007]). Plaintiff failed to proffer either new facts which were unavailable at the time of the prior motion or a reasonable justification for its failure to have presented the new facts on the prior motion (see CPLR 2221 [e]; Deutsche Bank Natl. Trust Co. v Matheson, 77 AD3d 883 [2010]). In any event, the new evidence upon which plaintiff relies would not have changed the prior determination.

Accordingly, the order dated February 11, 2016, and the order dated April 21, 2016 insofar as reviewed, are affirmed.