Rochester Genesee Reg'l Transp. Auth. v. Stensrud

• Decision Date: 08 June 2018
• Docket Number: 443,CA 17–02091
• Parties: In the Matter of ROCHESTER GENESEE REGIONAL TRANSPORTATION AUTHORITY, Petitioner–Respondent, v. John R. STENSRUD, Maria B. Stensrud, Respondents–Appellants, and Canandaigua National Bank and Trust Company, as Mortgagee, Respondent.
• Court: New York Supreme Court — Appellate Division

162 A.D.3d 1495

79 N.Y.S.3d 773

In the Matter of ROCHESTER GENESEE REGIONAL TRANSPORTATION AUTHORITY, Petitioner–Respondent,

v.John R. STENSRUD, Maria B. Stensrud, Respondents–Appellants,andCanandaigua National Bank and Trust Company, as Mortgagee, Respondent.

443

CA 17–02091

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

Decided June 8, 2018

LACY KATZEN LLP, ROCHESTER (JOHN T. REFERMAT OF COUNSEL), FOR RESPONDENTS–APPELLANTS.

BOND, SCHOENECK & KING, PLLC, SYRACUSE (KATHLEEN M. BENNETT OF COUNSEL), FOR PETITIONER–RESPONDENT.

PRESENT: WHALEN, P.J., CENTRA, LINDLEY, CURRAN, AND TROUTMAN, 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: John R. Stensrud and Maria B. Stensrud (respondents) appeal from an order denying their motion seeking leave to reargue and renew with respect to a prior order that granted petitioner's motion in limine and denied respondents' cross motion in limine. No appeal lies from an order denying a motion seeking leave to reargue, and thus that part of respondents' appeal must be dismissed (see 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 respondents' motion seeking leave to renew inasmuch as respondents failed to provide a reasonable justification for their failure to submit the new evidence in opposition to the prior motion and in support of the prior cross motion (see Heltz v. Barratt, 115 A.D.3d 1298, 1299–1300, 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] ; Wright v. State of New York, 156 A.D.3d 1413, 1414–1415, 65 N.Y.S.3d 874 [4th Dept. 2017], appeal dismissed 31 N.Y.3d 1001, 74 N.Y.S.3d 162, 97 N.E.3d 710 [2018] ). "[A] motion for leave to renew ‘is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation’ " ( Heltz, 115 A.D.3d at 1300, 983 N.Y.S.2d 160 ).