Opinion
No. 2008-00319.
December 16, 2008.
In related actions, inter alia, to recover damages for breach of contract, breach of warranty, and negligence, the plaintiff's Staten Island New York CVS, Inc., and CVS Pharmacy, Inc., appeal, as limited by their brief, from so much of an order of the Supreme Court, Richmond County (McMahon, J.), dated December 4, 2007, as amended December 5, 2007, as denied their motion denominated as one for leave to renew but which was, in actuality, a motion for leave to reargue their opposition to the motion of the defendants Gordon Retail Development, LLC, MPG Construction Corp., and MPG Construction, LLC, the cross motion of the defendant Virga Commercial Contractors, Inc., and the separate cross motion of the defendants Nave Newell Stampfl, Ltd., and Nave Newell, Inc., for summary judgment dismissing the complaint insofar as asserted against each of them in action No. 1, and the motion of the defendant MXW Holding Corp. for summary judgment dismissing the complaint in action No. 2, which had been determined in an order dated September 7, 2007.
Allyn Fortuna, LLP, New York, N.Y. (Nicholas Fortuna of counsel), for appellants.
O'Connell and Aronowitz, Albany, N.Y. (Jeffrey J. Sherrin and William F. Berglund of counsel), for defendants third-party plaintiff's-respondents in Action No. 1.
Newman Fitch Altheim Myers, P.C., New York, N.Y. (Charles W. Kreines and Martin I. Nagel of counsel), for defendant second third-party plaintiff-respondent in Action No. 1.
Wilson, Elser, Moskowitz, Edelman Dicker, LLP, New York, N.Y. (Richard E. Lerner of counsel), for defendants-respondents in Action No. 1.
Before: Fisher, J.P., Florio, Carni and Chambers, JJ. concur.
Ordered that the appeal is dismissed, with one bill of costs to the respondents appearing separately and filing separate briefs.
A motion for leave to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination" (CPLR 2221 [e] [2]). Here, the plaintiff's' alleged new evidence had not only been submitted to the Supreme Court in opposition to the original motions, cross motion, and separate cross motion but had also been considered by the court in determining them. Accordingly, that branch of the plaintiff's motion, denominated as one for leave to renew, was, in fact, a motion for leave to reargue ( see CPLR 2221 [e] [2]; Passeri v Children's Vil., 277 AD2d 366, 367; Lowensohn v Bedford Garden Caterers, 266 AD2d 266, 267), and no appeal lies from an order denying reargument ( see Haggerty v Agawam Realty, 271 AD2d 408).