256 Bergen Housing Corp. v. 256 Bergen Associates

225 A.D.2d 785, 639 N.Y.2d 951, 639 N.Y.S.2d 951, 1996 N.Y. App. Div. LEXIS 3121

Opinion

The proceeding to cancel and discharge a wraparound mortgage held by D & F Capital Co. (hereinafter D & F) was resolved by order of Supreme Court, Kings County, dated August 25, 1992, which granted the requested relief to the petitioner. In making the subject motion, D & F was, in' actuality, seeking reargument of its opposition to the prior application to cancel the subject mortgage because its motion was not based upon new facts which were unavailable at the time it opposed the underlying application (see, Wodecki v Carty, 167 AD2d 398). It is axiomatic that no appeal lies from an order denying a motion to reargue and, as such, this appeal is dismissed (see, Wodecki v Carty, supra). In any event, even if D & F is correct in its assertion that its alleged cure of the default on the underlying mortgage constitutes "new evidence”, we find that it did not exercise due diligence in producing this "new evidence” (see, Levitt v County of Suffolk, 166 AD2d 421). Balletta, J. P., Thompson, Pizzuto and Altman, JJ., concur.