Continental Bank v. J.D.S. Vendor Services, Inc.

In an action to recover damages for breach of contract, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Lockman, J.), dated September 25, 1991, as denied its motion to vacate a judgment of the same court (Roberto, J.), entered February 21, 1991, treating it as a motion for leave to renew the plaintiffs motion for summary judgment.

Ordered that the appeal is dismissed, with costs.

The defendant’s motion, denominated as one to vacate a prior judgment of the same court and treated by the court as one for renewal of the plaintiffs summary judgment motion, was based on evidence which could have been raised at the time of the summary judgment motion. Since the defendant offered no excuse for its failure to present the evidence at that time, the motion was, in actuality, a motion to reargue the plaintiffs summary judgment motion, the denial of which is not appealable (see, Bartolo v South Nassau Communities Hosp., 198 AD2d 204 ; McElroy v Guida, 196 AD2d 859 ; Stein v County of Westchester, 172 AD2d 742 ). Mangano, P. J., Rosenblatt, Lawrence, Copertino and Joy, JJ., concur.