Spear v. Herbert

In an action pursuant to RPAPL article 15 to compel the determination of a claim to real property, the plaintiffs appeal from an order of the Supreme Court, Orange County (Patsalos, J.), dated November 20, 1987, which denied their motion denominated as one for renewal and reargument of the defendants’ motion for summary judgment. Ordered that the appeal is dismissed, without costs or disbursements. The denial of the plaintiffs’ motion, characterized as one for [559] renewal and reargument of the defendants’ motion for summary judgment, is not appealable because it was not based upon new facts which were unavailable at the time they submitted their original opposition to the defendants’ motion, and it is therefore actually a motion to reargue (see, e.g., Mgrditchian v Donato, 141 AD2d 513; Matter of Bosco, 141 AD2d 639). In any event, the motion was properly denied since the plaintiffs failed to offer any valid excuses for not submitting the additional-known facts in defense of the original motion (see, Mayer v McBrunigan Constr. Corp., 123 AD2d 606; Caffee v Arnold, 104 AD2d 352). Kunzeman, J. P., Kooper, Harwood and Rosenblatt, JJ., concur.