Opinion
June 12, 1989
Appeal from the Surrogate's Court, Kings County (Bloom, S.).
Ordered that the order entered August 25, 1987 is affirmed for reasons stated by Surrogate Bloom in his memorandum decision dated August 4, 1987; and it is further,
Ordered that the appeal from so much of the order dated August 30, 1988 as denied the motion denominated as one for renewal is dismissed; and it is further,
Ordered that the order dated August 30, 1988 is otherwise affirmed; and it is further,
Ordered that the defendant John Mackey is awarded one bill of costs payable by the plaintiff.
The plaintiff's motion, characterized as one for renewal of the defendant John Mackey's cross motion, inter alia, for summary judgment dismissing the complaint, was not based upon new facts which were unavailable at the time he submitted his original opposition to that defendant's cross motion, and is therefore actually a motion to reargue, the denial of which is not appealable (see, e.g., Mgrditchian v. Donato, 141 A.D.2d 513; Matter of Bosco, 141 A.D.2d 639; Matter of Kadish v. Colombo, 121 A.D.2d 722). Even if the motion were deemed one for renewal, it was properly denied as the plaintiff has not offered a reasonable excuse for his failure to submit the additional facts at the earlier time (see, Matter of Bosco, 141 A.D.2d 639, supra; Caffee v. Arnold, 104 A.D.2d 352).
In light of our determination, we need not address the plaintiff's other contention. Thompson, J.P., Lawrence, Rubin and Balletta, JJ., concur.