Fedchak v. Gerald T. Stay Co.

Full title: WILLIAM R. FEDCHAK, JR., Appellant, v. GERALD T. STAY CO., INC., Respondent

Court: Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Dec 22, 1995

222 A.D.2d 1125 (N.Y. App. Div. 1995)

636 N.Y.S.2d 709

Opinion

December 22, 1995

Appeal from the Supreme Court, Erie County, Whelan, J.

Present — Pine, J.P., Fallon, Wesley, Doerr and Davis, JJ.

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 A.D.2d 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 A.D.2d 1061; Brookview Homeowners' Assn. v Mark IV Constr. Co., 178 A.D.2d 967).