Thein v. Mamaroneck Union Free School District

231 A.D.2d 730, 647 N.Y.S.2d 987, 1996 N.Y. App. Div. LEXIS 9706

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 30, 1996
• Status: Published

Opinion

In a proceeding pursuant to General Municipal Law § 50-e (5) for leave to serve a late notice of claim, the petitioner appeals from an order of the Supreme Court, Westchester County, entered September 8, 1995 (Wood, J.), which, upon deeming the petitioner’s motion denominated as one for reargument to be a motion for reargument and renewal, denied reargument and renewal of the petitioner’s application for leave to serve a late notice of claim.

Ordered that the appeal is dismissed, with costs.

The appeal from the denial of the petitioner’s motion, deemed one for reargument and renewal, must be dismissed. The motion is actually one for reargument only since it was not based on new facts unavailable at the time of the original application (see, Huttner v McDaid, 151 AD2d 547). The petitioner failed to provide a reasonable explanation as to why the physician’s medical opinion in support of the petition for leave to serve a late notice of claim, which was submitted as a supplement to the petitioner’s motion to renew and reargue, could not have been provided with the original petition (see, Matter of Meredithe C. v Carmel Cent. School Dist., 192 AD2d 952; DeFreitas v Board of Educ., 129 AD2d 672). No appeal lies from an order denying reargument (see, Ashton v Goldberg, 201 AD2d 601; Saferstein v Stark, 171 AD2d 856; Mgrditchian v Donato, 141 AD2d 513). O’Brien, J. P., Joy, Friedmann and Krausman, JJ., concur.