Opinion
Argued June 29, 1999
October 18, 1999
In an action, inter alia, to foreclose a mechanic's lien, the defendants David Kownacki, Toby Kownacki, and Fidelity Deposit Company of Maryland appeal from an order of the Supreme Court, Westchester County (Barone, J.).
ORDERED that the appeal from so much of the order as denied the branch of the motion which is to reargue is dismissed, as no appeal lies from an order denying reargument; and it is further,
ORDERED that the order is affirmed insofar as reviewed; and it is further,
ORDERED that the respondent is awarded one bill of costs.
The Supreme Court improperly denominated the appellants' motion to renew and reargue as one to reargue only, since it was partially based upon information which was unavailable at the time the appellants originally moved for summary judgment (see, Karlin v. Bridges, 172 A.D.2d 644; Weisse v. Kamhi, 129 A.D.2d 698). However, contrary to the appellants' contentions, their submissions on renewal did not eliminate the question of whether the homeowners, the appellants David P. Kownacki and Toby S. Kownacki, owed any additional money to the general contractor, the defendant Burton Garret Associates, Inc., at the time the plaintiff filed its mechanic's lien. Accordingly, the Supreme Court properly concluded that the appellants were not entitled to summary judgment dismissing the complaint (see, Lien Law § 4; DiVeroncia Bros. v. Basset, 213 A.D.2d 936; Perma Pave Contr. Corp. v. Paerdegat Boat Racquet Club, 156 A.D.2d 550; Electric City Concrete Co. v. Phillips, 100 A.D.2d 1).
JOY, J.P., FRIEDMANN, SCHMIDT, and SMITH, JJ., concur.
Motion by the respondent to dismiss an appeal from an order of the Supreme Court, Westchester County, entered September 21, 1998, on the ground, inter alia, that no appeal lies from an order denying a motion to reargue.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is
ORDERED that the motion is denied as academic, in light of the determination of the appeal (see, Richard's Home Center Lumber, Inc. v. Kownacki, 265 A.D.2d 471 [decided herewith]).
JOY, J.P., FRIEDMANN, SCHMIDT, and SMITH, JJ., concur.