P & S 95th St. Assocs., LLC v. Nilde Realty

• Decision Date: 28 June 2016
• Citation: 2016 N.Y. Slip Op. 05103,33 N.Y.S.3d 712 (Mem),140 A.D.3d 642
• Parties: P & S 95TH STREET ASSOCIATES, LLC, Plaintiff–Respondent, v. NILDE REALTY, et al., Defendants, Phillipos Restaurant, Inc., doing business as The Barking Dog, et al., Defendants–Appellants.
• Court: New York Supreme Court — Appellate Division

140 A.D.3d 642

33 N.Y.S.3d 712 (Mem)

2016 N.Y. Slip Op. 05103

P & S 95TH STREET ASSOCIATES, LLC, Plaintiff–Respondent,

v. NILDE REALTY, et al., Defendants,Phillipos Restaurant, Inc., doing business as The Barking Dog, et al., Defendants–Appellants.

Supreme Court, Appellate Division, First Department, New York.

June 28, 2016.

Law Office of Daniel Friedman, Brooklyn (Daniel Friedman of counsel), for appellants.

Jeffrey A. Oppenheim, New York, for respondent.

Order, Supreme Court, New York County (Peter H. Moulton, J.), entered August 11, 2015, which, to the extent appealable, denied appellants' motion to vacate the court's March 13, 2014 order, unanimously affirmed, with costs. Appeal from so much of the August 2015 order as purports to be from the denial of appellants' motion to renew, unanimously dismissed, without costs, as taken from the denial of reargument.

The lower court properly denied appellants' motion to renew, as appellants' purported “new facts” are not new facts, but rather new legal arguments. Accordingly, appellants' motion is more accurately characterized as a motion to reargue, and no appeal lies from the court's denial of a motion to reargue (see Forbes v. Giacomo, 130 A.D.3d 428, 11 N.Y.S.3d 485 [1st Dept.2015]

, lv. dismissed in part, denied in part 26 N.Y.3d 1047, 22 N.Y.S.3d 409, 43 N.E.3d 766 [2015] ; Federal Ins. Co. v. Manufacturers Hanover Trust Co., 157 A.D.2d 460, 460, 549 N.Y.S.2d 385 [1st Dept.1990] ).

With respect to appellants' motion to vacate pursuant to CPLR 5015(a)(1)

, even if the motion were timely, appellants failed to demonstrate a reasonable excuse (Northern Source, LLC v. Kousouros, 106 A.D.3d 571, 572, 966 N.Y.S.2d 377 [1st Dept.2013] ; Chelsea Antoinette A. [Anna S.], 88 A.D.3d 627, 931 N.Y.S.2d 503 [1st Dept.2011] ).

FRIEDMAN

, J.P., ANDRIAS, SAXE, RICHTER, KAHN, JJ., concur.