DeGraw Constr. Grp., Inc. v. McGowan Builders, Inc.

• Decision Date: 11 December 2019
• Docket Number: Index No. 8072/14,2018–12386
• Citation: 178 A.D.3d 772,111 N.Y.S.3d 898 (Mem)
• Parties: DEGRAW CONSTRUCTION GROUP, INC., Respondent, v. MCGOWAN BUILDERS, INC., et al., Appellants, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

178 A.D.3d 772

111 N.Y.S.3d 898 (Mem)

DEGRAW CONSTRUCTION GROUP, INC., Respondent,

v.MCGOWAN BUILDERS, INC., et al., Appellants, et al., Defendants.

2018–12386

Index No. 8072/14

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

Argued—October 18, 2019

December 11, 2019

Law Firm of Joseph J. Hocking LLC, New York, NY, for appellants.

Zisholtz & Zisholtz, LLP, Garden City, N.Y. (Joseph McMahon of counsel), for respondent.

WILLIAM F. MASTRO, J.P., JOHN M. LEVENTHAL, COLLEEN D. DUFFY, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

In a consolidated action, inter alia, to foreclose mechanic's liens, the defendants McGowan Builders, Inc., and Liberty Mutual Insurance Company appeal from an order of the Supreme Court, Kings County (Mark I. Partnow, J.), dated September 4, 2018. The order granted the plaintiff's motion for leave to reargue its opposition to the prior motion of the defendants McGowan Builders, Inc., and Liberty Mutual Insurance Company for summary judgment dismissing the complaints insofar as asserted against them, and for summary judgment on their counterclaims to declare the plaintiff's mechanic's liens void and for damages pursuant to Lien Law § 39–a, which had been granted in an order of the same court dated September 5, 2017, and, upon reargument, in effect, vacated the order dated September 5, 2017, and thereupon denied the prior motion.

ORDERED that the order dated September 4, 2018, is reversed, on the facts and in the exercise of discretion, with costs, the plaintiff's motion for leave to reargue is denied, and the order dated September 5, 2017, is reinstated.

A motion for leave to reargue "shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion" ( CPLR 2221[d][2] ). While the determination to grant leave to reargue lies within the sound discretion of the court (see Barnett v. Smith, 64 A.D.3d 669, 670–671, 883 N.Y.S.2d 573 ; Long v. Long, 251 A.D.2d 631, 675 N.Y.S.2d 557 ; Loland v. City of New York, 212 A.D.2d 674, 622 N.Y.S.2d 762 ), a motion for leave to reargue "is not designed to provide an unsuccessful party with successive opportunities to reargue issues previously decided, or to present arguments different from those originally presented" ( McGill v. Goldman, 261 A.D.2d 593, 594, 691 N.Y.S.2d 75 ; see Woody's Lbr. Co., Inc. v. Jayram Realty Corp., 30 A.D.3d 590, 593, 817...