Staten Island New York CVS, Inc. v. Gordon Retail Development, LLC

57 A.D.3d 764, 869 N.Y.2d 583

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 16, 2008
• Status: Published

Opinion

A motion for leave to renew “shall be based upon new facts not offered on the prior motion that would change the prior determination” (CPLR 2221 [e] [2]). Here, the plaintiffs’ alleged new evidence had not only been submitted to the Supreme Court in opposition to the original motions, cross motion, and separate cross motion but had also been considered by the court in determining them. Accordingly, that branch of the plaintiffs motion, denominated as one for leave to renew, was, in fact, a motion for leave to reargue (see CPLR 2221 [e] [2]; Passeri v Children’s Vil., 277 AD2d 366, 367 [2000]; Lowensohn v Bedford Garden Caterers, 266 AD2d 266, 267 [1999]), and no appeal lies from an order denying reargument (see Haggerty v Agawam Realty, 271 AD2d 408 [2000]). Fisher, J.P., Florio, Carni and Chambers, JJ., concur.