Opinion
May 10, 2001.
Order, Supreme Court, New York County (Herman Cahn, J.), entered May 24, 2000, which, inter alia, denied plaintiffs' motion to renew their previously denied motion for summary judgment, unanimously affirmed, without costs.
Jacques Catafago, for plaintiffs-appellants.
Edward N. Gewirtz, for defendant-respondent.
Before: Sullivan, P.J., Rosenberger, Tom, Andrias, Marlow, JJ.
Plaintiffs' motion for renewal was premised upon a Department of Taxation and Finance conciliation order, which plaintiffs contend is dispositive of whether defendant, as opposed to the Department of Taxation and Finance, owes plaintiff partnership some $529,873. However, because the conciliation order had been timely appealed by the partnership, it was non-binding (Tax Law § 170[3-a][e]) and, accordingly, not dispositive of whether defendant is in fact liable for the amount claimed. Thus, since the non-binding conciliation order did not constitute new matter "that would change the prior determination," renewal premised thereon was properly denied (CPLR 2221[e][2]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.