Mgrditchian v. Donato

Decision Date06 June 1988
Citation529 N.Y.S.2d 134,141 A.D.2d 513
PartiesGeorge MGRDITCHIAN d/b/a K Construction Co., Respondent, v. J. DONATO d/b/a General Contracting Ltd., Appellant.
CourtNew York Supreme Court — Appellate Division

McGovern, Connelly & Davidson, New Rochelle (Robert J. McGoey and Charles K. McGoey, of counsel), for appellant.

Dryer & Dryer, P.C., New Rochelle (Howard L. Dryer, of counsel), for respondent.

Before THOMPSON, J.P., and WEINSTEIN, EIBER and HARWOOD, JJ.

MEMORANDUM BY THE COURT.

In an action to recover the unpaid balance of moneys due under a construction contract, the defendant appeals from an order of the Supreme Court, Westchester County (Ruskin, J.), entered December 2, 1986, which denied its motion which was, in effect, for reargument of the plaintiff's prior motion, inter alia, for summary judgment which was granted by an order of the same court, dated October 2, 1986.

ORDERED that the appeal is dismissed, with costs.

All of the facts and evidence submitted in support of the defendant's motion were available and known to it at the time of submission of the original motion by the plaintiff ( see, Klein v. Mount Sinai Hosp., 121 A.D.2d 164, 502 N.Y.S.2d 1018; McRory v. Craft Architectural Metals Corp., 112 A.D.2d 358, 491 N.Y.S.2d 808; Foley v. Roche, 68 A.D.2d 558, 418 N.Y.S.2d 588, affd. on remand 86 A.D.2d 887, 447 N.Y.S.2d 528, lv. denied 56 N.Y.2d 507, 453 N.Y.S.2d 1025, 438 N.E.2d 1147). The defense counsel attempted to justify the failure to submit the requisite evidentiary material in opposition to plaintiff's original motion, inter alia, for summary judgment by claiming that he believed the "plaintiff's moving papers were insufficient as a matter of law". We find this purported "excuse" to be wholly unsatisfactory. The defendant should have "laid bare all of [its] evidence on the original motion" ( see, Caffee v. Arnold, 104 A.D.2d 352, 478 N.Y.S.2d 683). Accordingly, the order appealed from, in effect, denies reargument. Since no appeal lies from an order denying reargument, the appeal is dismissed (see, DeFreitas v. Board of Educ., 129 A.D.2d 672, 514 N.Y.S.2d 433).

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    • United States
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    • January 31, 2013
    ...non-moving party must lay bare all of the facts at its disposal regarding the issues raised in the motion. Mgrditchian v. Donato, 141 A.D.2d 513, 529 N.Y.S.2d 134 (2d Dept.1988). Conclusory allegations are insufficient ( Zuckerman v. City of New York, supra ), and the defending party must d......
  • Petion v. Uwechue, 2010 NY Slip Op 30576(U) (N.Y. Sup. Ct. 3/15/2010)
    • United States
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    • March 15, 2010
    ...49 N.Y.2d 557. The non-moving party must lay bare all of the facts at its disposal regarding the issues raised in the motion. Mgrditchian v Donato, 141 A.D.2d 513. Conclusory allegations are insufficient (Zuckerman v City of New York, supra,) and the defending party must do more than merely......
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    ...543 N.Y.S.2d 916). The denial of a motion for reargument is not appealable (see, e.g., Huttner v. McDaid, supra; Mgrditchian v. Donato, 141 A.D.2d 513, 529 N.Y.S.2d 134). ...
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