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NYCTL 1999-1 Trust v. Surf Coney Island

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


June 23, 2009

NYCTL 1999-1 TRUST, APPELLANT, ET AL., PLAINTIFF,
v.
SURF CONEY ISLAND, INC., ET AL., RESPONDENTS.

In an action to foreclose a tax lien, the plaintiff NYCTL 1999-1 Trust appeals from an order of the Supreme Court, Kings County (Vaughan, J.), dated February 20, 2008, which denied those branches of the plaintiffs' motion which were for leave to renew and reargue the plaintiffs' prior motion for summary judgment on the complaint, which had been denied in an order dated July 25, 2007, and the prior cross motion of the defendants Surf Coney Island, Inc., and Kansas Fried Chicken, Inc., for summary judgment dismissing the complaint which had been granted in the order dated July 25, 2007.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

STEVEN W. FISHER, J.P., JOSEPH COVELLO, DANIEL D. ANGIOLILLO and JOHN M. LEVENTHAL, JJ.

(Index No. 16323/03)

DECISION & ORDER

ORDERED that the appeal from so much of the order as denied that branch of the plaintiffs' motion which was for leave to reargue is dismissed, as no appeal lies from an order denying reargument; and it is further,

ORDERED that the order is affirmed insofar as reviewed; and it is further,

ORDERED that one bill of costs is awarded to the respondent Surf Coney Island, Inc.

The Supreme Court providently exercised its discretion in denying that branch of the plaintiffs' motion which was for leave to renew. The plaintiffs failed to present a reasonable justification for their failure to present certain "new facts" on the original motion and cross motion (CPLR 2221[e][3]; see O'Connell v Post, 27 AD3d 631; Renna v Gullo, 19 AD3d 472). In any event, those facts would not have changed the prior determinations (see CPLR 2221[e][2]; Renna v Gullo, 19 AD3d at 472).

FISHER, J.P., COVELLO, ANGIOLILLO and LEVENTHAL, JJ., concur.

20090623

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