Spiro v. Spiro

91 A.D.2d 1103, 458 N.Y.S.2d 354, 1983 N.Y. App. Div. LEXIS 16446

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 13, 1983
• Status: Published

Opinion

— Appeal from an order of the Supreme Court at Special Term (Williams, J.), entered January 15, 1982 in Albany County, which denied a motion by plaintiff’s former attorney to renew and reargue. Appellant is an attorney who formerly represented plaintiff in this matrimonial action. By an order dated September 22,1981, appellant was directed to turn over the entire file in this action to plaintiff’s present attorneys. Subsequently, appellant sought permission to “renew and reargue”. By order entered January 15, 1982, appellant’s motion to renew and reargue was denied and the present appeal is solely from this latter order. If appellant’s motion is considered one for reargument, the denial of the motion is not appealable (Roy v National Grange Mut. Ins. Co., 85 AD2d 832, 833). A motion to renew must be based upon additional material facts which existed at the time the prior motion was made but were not then known to the party seeking leave to renew (Foley v Roche, 68 AD2d 558). Although appellant stated in an affidavit in support of the motion that it was based upon facts not previously presented to the court, no new material facts were therein alleged. Nor was any excuse offered for not presenting the additional facts upon the original application. Consequently, the motion by appellant seeking leave to renew was properly denied and the order should be affirmed (see Foley v Roche, supra; Matter of Hooker v Town Bd. of Town of Guilderland, 60 AD2d 684). Order affirmed, with costs. Sweeney, J. P., Kane, Main, Casey and Weiss, JJ., concur.