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We're Associates, Inc. v. F.W. Koehler & Sons, Inc.

213 A.D.2d 477 Court N.Y. App. Div. Decision date 1995-03-13 English

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p. 477
We’re Associates, Inc., Appellant, v F.W. Koehler & Sons, Inc., Defendant and Third-Party Plaintiff-Respondent. Consolidated Brick and Building Supplies, Inc., et al., Third-Party Defendants-Respondents.
[624 NYS2d 886]

—In an action to recover damages for breach of contract, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Levitt, J.), dated January 8, 1993, as denied that branch of its motion which was "for

p. 478
leave to reargue and/or renew” the granting of that branch of the defendant’s prior cross motion which was to dismiss the first cause of action.

Ordered that the appeal is dismissed, with one bill of costs to the respondents appearing separately and filing separate briefs.

The information submitted by the plaintiff was known to it at the time the original motion and cross motion were made. The plaintiff offered no excuse for its failure to submit such evidence on the original motion. Consequently, the plaintiff’s motion was, in effect, for reargument (see, DeFreitas v Board of Educ., 129 AD2d 672 ; Brann v City of New York, 96 AD2d 923 ; Champlain Val. Elec. Supply Co. v Miller, 89 AD2d 1036 ; Foley v Roche, 68 AD2d 558 ). Since no appeal lies from an order denying reargument, the appeal must be dismissed. Thompson, J. P., Lawrence, O’Brien and Krausman, JJ., concur.

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