Opinion
May 18, 2000.
Appeal from order, Supreme Court, New York County (William Wetzel, J.), entered November 23, 1999, which denied petitioner's motion to reargue respondents' previously granted motion to dismiss petitioner's application pursuant to CPLR article 78, which application sought a writ of mandamus to compel the municipal respondents to conduct an investigation into his termination from the Department of Sanitation, unanimously dismissed, without costs.
Eugene D. Zinbarg, for petitioner-appellant.
A. Orli Spanier, for respondents-respondents.
Before: Williams, J.P., Tom, Mazzarelli, Buckley, JJ.
Since petitioner failed to set forth new or additional facts in support of his motion, the motion was properly considered, and denied in the appealed order, as one for reargument only. It follows that petitioner's appeal must be dismissed, since no appeal lies from the denial of reargument (see, Mariani v. Dyer, 193 A.D.2d 456, 458, lv denied 82 N.Y.2d 658). In any case, were the appealed order reviewable, we would affirm because the decision not to conduct an investigation was a matter of discretion and the remedy of mandamus does not lie to compel action involving the exercise of discretion or judgment (see, Matter of Mullen v. Axelrod, 74 N.Y.2d 580, 582).
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.