Fedchak v. Gerald T. Stay Co.

222 A.D.2d 1125, 636 N.Y.S.2d 709, 1995 N.Y. App. Div. LEXIS 14326

Opinion

—Appeal unanimously dismissed without costs. Memorandum: Plaintiff’s motion, denominated as one motion to "renew argument”, was in fact a motion to reargue, from which no appeal lies (see, Empire Ins. Co. v Food City, 167 AD2d 983, 984). Were we to treat this as a motion to renew, we would affirm because the renewal motion was predicated on a legal theory not advanced in opposition to the original motion. Thus, it would have been an abuse of discretion to grant the renewal motion (see, Mid-State El. Co. v Empire-Salina Assocs. [appeal No. 2], 190 AD2d 1061; Brookview Homeowners’ Assn. v Mark IV Constr. Co., 178 AB2d 967). (Appeal from Order of Supreme Court, Erie County, Whelan, J. — Reargument.) Present — Pine, J. P., Fallon, Wesley, Doerr and Davis, JJ.