CLEARVIEW FARMS LLC v. PAPKE, DAVID

125 A.D.3d 1286, 3 N.Y.S.3d 481

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 6, 2015
• Docket: CA 14-01300
• Status: Published

Opinion

Appeal from an order of the Supreme Court, Monroe County (Thomas A. Stander, J.), entered January 30, 2014. The order, among other things, denied plaintiffs motion to modify an order dated November 19, 2013.

It is hereby ordered that said appeal is unanimously dismissed without costs.

Memorandum: Plaintiff commenced this action seeking damages for defendants’ breach of their residential lease agreement with plaintiff. After a bench trial, Supreme Court reached a verdict in favor of plaintiff and thereafter issued an order awarding plaintiff $1,676.66 for unpaid rent and utilities, without prejudgment interest, and $150 for attorney’s fees. Plaintiff did not appeal that order and instead filed a motion to “modify” the court’s order to include prejudgment interest. Although plaintiff denominated the motion as one to “modify” the court’s order, we conclude from the papers submitted in support of the motion that it was, in effect, a motion for leave to reargue the denial of prejudgment interest, which the court denied (see Matter of Hoover v Derry, 3 AD3d 659, 659 [2004]; C.R. v Pleasantville Cottage School, 302 AD2d 259, 260 [2003]). No appeal lies from an order denying a motion for leave to reargue (see Hill v Milan, 89 AD3d 1458, 1458 [2011]; Empire Ins. Co. v Food City, 167 AD2d 983, 984 [1990]).

We decline to impose sanctions or to award attorney’s fees, costs, or disbursements to defendants, as defendants request in their brief. Such action is not warranted inasmuch as we conclude that plaintiffs appeal does not constitute “frivolous conduct” as defined in 22 NYCRR 130-1.1 (c) (see Amherst Magnetic Imaging Assoc. v Community Blue, HMO of Blue Cross of W. N.Y., 286 AD2d 896, 898 [2001], lv denied 97 NY2d 612 [2002]). Present — Smith, J.P., Fahey, Carni, Valentino and Whalen, JJ.