Wahl v. Grippen

Mercure, J.P. Appeal from an order of the Supreme Court (Rumsey, J.), entered October 18, 2001 in Broome County, which denied plaintiffs motion to renew. In 1996, plaintiff and Edward Swart took civil service exams for the position of Broome County Probation Director. Plaintiff and Swart, who were the two deputy directors at that time, both qualified. After the Broome County Executive, defendant Timothy Grippen, interviewed plaintiff and Swart, he appointed Swart to the position of Temporary Probation Director. Ultimately, Swart was appointed Probation Director. Plaintiff commenced this action against Grippen and Broome County, alleging that he was not offered the position because he changed his party affiliation from Democrat to Republican in 1994. Following joinder of issue, defendants moved for summary judgment seeking dismissal of the complaint. Defendants submitted deposition testimony from Grippen indicating that he based his decision on plaintiffs interview, during which plaintiffs posture was “defensive.” Grippen also stated that he found plaintiffs approach to be bureaucratic and that he was concerned that plaintiff was uncooperative and difficult. Plaintiff failed to submit evidence contradicting these contentions in opposing the motion. Supreme Court granted defendants’ motion and dismissed the complaint. Plaintiff subsequently made a motion to renew. Supreme Court denied that motion and plaintiff now appeals. This Court has consistently held that a motion to renew must be based upon newly discovered evidence which existed at the time the prior motion was made, but was unknown to the party seeking renewal, along with a justifiable excuse as to why the new information was not previously submitted (see Carota v Wu, 284 AD2d 614, 617 [2001]; N.A.S. Partnership v Kligerman, 271 AD2d 922, 922-923 [2000]; Maines Paper & Food Serv. v Farmington Foods, 233 AD2d 595, 596 [1996]; Matter of Jones v Marcy, 135 AD2d 887, 888 [1987]). In connection with his motion to renew, plaintiff presented evidence relating to the credibility of defendants’ witnesses and their explanation for declining to appoint him to the position of Probation Director. Plaintiff concedes, however, that this evidence was not newly discovered. Accordingly, we perceive no error in Supreme Court’s denial of the motion. Moreover, to the extent that the court considered plaintiffs motion as one for reargument, the denial thereof is not appealable (see e.g. Lau v Sullivan County Dist. Attorney Stephen F. Lungen, 264 AD2d 912 [708] [1999], lv dismissed 95 NY2d 825 [2000], cert denied 531 US 1082 [2001]). Plaintiffs remaining contentions are either not properly presented for our review or lacking in merit. Crew III, Peters, Rose and Lahtinen, JJ., concur. Ordered that the order is affirmed, without costs.