Opinion
April 4, 1994
Appeal from the Supreme Court, Suffolk County (Fierro, J.).
Ordered that the appeal is dismissed, with costs.
The defendant first moved to vacate the judgment of divorce, which had been granted after an inquest following his default in answering the summons with notice, on the ground of lack of personal jurisdiction. A traverse hearing was held, at the conclusion of which the court found that he had been properly served and denied the motion. The defendant thereafter sought leave to renew the prior motion to vacate but now essentially on the ground that he had recently obtained evidence that the plaintiff had committed fraud in procuring the judgment. The Supreme Court denied the motion for leave to renew, finding that the defendant had failed to submit any new or additional facts which could not have been submitted earlier.
The appellant's motion, although characterized as one for renewal, was not based upon new facts which were unavailable at the time of the original motion and it is therefore actually a motion to reargue, the denial of which is not appealable (see, Huttner v McDaid, 151 A.D.2d 547; Mackey v Mackey, 151 A.D.2d 554; Mgrditchian v Donato, 141 A.D.2d 513). Even if the motion were deemed to be one for leave to renew, we would find that it was properly denied because the defendant failed to offer a reasonable excuse as to why the additional facts were not submitted at the time of the original motion (see, Mayer v McBrunigan Constr. Corp., 123 A.D.2d 606).
We have examined the defendant's remaining contentions and find them to be either unpreserved for appellate review or without merit. Balletta, J.P., Rosenblatt, Ritter and Altman, JJ., concur.