Mgrditchian v. Donato

141 A.D.2d 513, 529 N.Y.S.2d 134, 1988 N.Y. App. Div. LEXIS 6315

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 6, 1988
• Status: Published

Opinion

In an action to recover the unpaid balance of moneys due under a construction contract, the defendant appeals from an order of the Supreme Court, Westchester County (Ruskin, J.), entered December 2, 1986, which denied its motion which was, in effect, for reargument of the plaintiff’s prior motion, inter alia, for summary judgment which was granted by an order of the same court, dated October 2, 1986.

Ordered that the appeal is dismissed, with costs.

All of the facts and evidence submitted in support of the defendant’s motion were available and known to it at the time of submission of the original motion by the plaintiff (see, Klein v Mount Sinai Hosp., 121 AD2d 164; McRory v Craft Architectural Metals Corp., 112 AD2d 358; Foley v Roche, 68 AD2d 558, affd on remand 86 AD2d 887, lv denied 56 NY2d 507). The defense counsel attempted to justify the failure to submit the requisite evidentiary material in opposition to plaintiff’s original motion, inter alia, for summary judgment by claiming that he believed the "plaintiff’s moving papers were insufficient as a matter of law”. We find this purported "excuse” to be wholly unsatisfactory. The defendant should have "laid bare all of [its] evidence on the original motion” (see, Caffee v Arnold, 104 AD2d 352). Accordingly, the order appealed from, in effect, denies reargument. Since no appeal lies from an order denying reargument, the appeal is dismissed (see, De-Freitas v Board of Educ., 129 AD2d 672). Thompson, J. P., Weinstein, Eiber and Harwood, JJ., concur.