Lindsay v. Funtime, Inc.

Appeal from order insofar as it denied reargument unanimously dismissed without costs and otherwise order affirmed. Memorandum: Supreme Court properly denied plaintiffs’ motion insofar as it sought renewal of the original motion. The new evidence upon which plaintiffs purported to rely was not newly discovered and plaintiffs failed to offer an explanation for their failure to submit that evidence in opposition to defendant’s original motion (see, Diaz-Tirado v Rivera, 169 AD2d 576 , 577, lv dismissed 77 NY2d 989 ; Matter of Beiny, 132 AD2d 190 , 210, lv dismissed 71 NY2d 994 ; Foley v Roche, 68 AD2d 558 , 568). The court’s denial of plaintiffs’ motion insofar as it sought reargument is not properly before us because no appeal lies from an order denying reargument (see, Pennino v Lasersurge, Inc., 178 AD2d 939 ; Empire Ins. Co. v Food City, 167 AD2d 983 ; Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C2221:9, at 185). (Appeal from Order of Supreme Court, Genesee County, Morton, J. — Renewal and Reargument.) Present — Green, J. P., Pine, Boehm, Fallon and Davis, JJ.