Home Insulation & Supply, Inc. v. Iskalo 5000 Main, LLC

• Decision Date: 23 December 2020
• Docket Number: 917,CA 19–01745
• Parties: HOME INSULATION & SUPPLY, INC., Plaintiff-Respondent, v. ISKALO 5000 MAIN, LLC, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

189 A.D.3d 2118
134 N.Y.S.3d 861 (Mem)

HOME INSULATION & SUPPLY, INC., Plaintiff-Respondent,
v.
ISKALO 5000 MAIN, LLC, Defendant-Appellant.

917
CA 19–01745

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

Entered: December 23, 2020

DUKE, HOLZMAN, PHOTIADIS & GRESENS LLP, BUFFALO (JAMES W. GRESENS OF COUNSEL), FOR DEFENDANT-APPELLANT.

JOHN J. LAVIN, P.C., BUFFALO (JOHN J. LAVIN OF COUNSEL), FOR PLAINTIFF-RESPONDENT.

PRESENT: CARNI, J.P., LINDLEY, WINSLOW, BANNISTER, AND DEJOSEPH, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that said appeal from the order insofar as it denied leave to reargue is unanimously dismissed and the order is affirmed without costs.

Memorandum: Defendant appeals from an order denying its motion for leave to reargue and renew that part of its motion for summary judgment seeking attorney's fees. No appeal lies from an order denying a motion seeking leave to reargue, and thus that part of defendant's appeal must be dismissed (see Matter of Rochester Genesee Regional Transp. Auth. v. Stensrud , 162 A.D.3d 1495, 1495, 79 N.Y.S.3d 773 [4th Dept. 2018], lv dismissed 35 N.Y.3d 950, 124 N.Y.S.3d 617, 147 N.E.3d 1155 [2020] ; Empire Ins. Co. v. Food City , 167 A.D.2d 983, 984, 562 N.Y.S.2d 5 [4th Dept. 1990] ). Supreme Court properly denied that part of defendant's motion seeking leave to renew. "It is well settled that a motion for leave to renew must be ‘based upon new facts not offered on the prior motion that would change the prior determination,’ and ‘shall contain reasonable justification for the failure to present such facts on the prior motion’ " ( Heltz v. Barratt , 115 A.D.3d 1298, 1299, 983 N.Y.S.2d 160 [4th Dept. 2014], affd 24 N.Y.3d 1185, 3 N.Y.S.3d 757, 27 N.E.3d 471 [2014] ; see CPLR 2221 [e] [2], [3] ; Blazynski v. A. Gareleck & Sons, Inc. , 48 A.D.3d 1168, 1170, 852 N.Y.S.2d 500 [4th Dept. 2008], lv denied 11 N.Y.3d 825, 868 N.Y.S.2d 593, 897 N.E.2d 1077 [2008] ). Here, the court denied that part of the motion for summary judgment seeking attorney's fees based on defendant's failure to provide documentation supporting an award of fees. Although defendant submitted itemized time records...