DeFreitas v. Board of Education of City of Mount Vernon District No. 416

129 A.D.2d 672, 514 N.Y.S.2d 433, 1987 N.Y. App. Div. LEXIS 45358

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 20, 1987
• Status: Published

Opinion

In a negligence action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Westchester County (Beisheim, J.), entered December 3, 1985, which denied its motion for leave "to renew and reargue” the denial of its prior cross motion, inter alia, to compel acceptance of its answer nunc pro tunc.

Ordered that the appeal is dismissed, with costs.

The information in the affidavits submitted in support of the defendant’s motion was clearly available to the defendant at the time of its original cross motion. The defendant, nevertheless, failed to provide, as is required, any explanation as to why these affidavits, which were submitted by persons having direct knowledge of the facts alleged, were not presented as a part of the earlier cross motion (see, Brann v City of New York, 96 AD2d 923; Champlain Val. Elec. Supply Co. v Miller, 89 AD2d 1036; Foley v Roche, 68 AD2d 558). Consequently, the defendant’s motion was in effect for reargument. Since no appeal lies from an order denying reargument, the appeal must be dismissed. Thompson, J. P., Brown, Niehoff and Rubin, JJ., concur.