Opinion
May 2, 1996
Appeal from the Supreme Court, New York County (Carol Arber, J.).
Defendant's motion for reargument consisted of a reiteration of the arguments made on the original motion for summary judgment based upon the case law on which defendant had relied. No new facts or evidence were presented to the court and defendant specifically stated that the motion was based upon defendant's belief that the court misapplied the controlling principles of law. The IAS Court in its decision explicitly stated that it was denying defendant's motion for reargument and no appeal lies from an order denying a motion for reargument ( Bell v. Toothsavers, Inc., 213 A.D.2d 199). We note, however, that if an appeal had been timely taken from the court's decision we would have reversed and granted summary judgment dismissing the complaint ( see, Martinez v. Lazaroff, 48 N.Y.2d 819; Abreu v. Stratford Realty Assocs., 208 A.D.2d 465).
Concur — Ellerin, J.P., Wallach, Kupferman, Williams and Mazzarelli, JJ.