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Kessler v. Towns

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


November 10, 2009

IN THE MATTER OF FREDA LEICHTER KESSLER, APPELLANT,
v.
EMANUEL TOWNS, ETC., RESPONDENT.

In a proceeding pursuant to CPLR article 75 to vacate an arbitration award dated January 18, 2008, the petitioner appeals from (1) a judgment of the Supreme Court, Westchester County (Smith, J.), dated July 3, 2008, which, in effect, denied the petition and dismissed the proceeding, and (2) an order of the same court dated October 7, 2008, which denied her motion for leave to renew and reargue.

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.

MARK C. DILLON, J.P., JOSEPH COVELLO, FRED T. SANTUCCI and ARIEL E. BELEN, JJ.

(Index No. 3350/08)

DECISION & ORDER

ORDERED that the judgment is affirmed; and it is further,

ORDERED that the appeal from so much of the order dated October 7, 2008, as denied leave to reargue is dismissed, as no appeal lies from an order denying leave to reargue; and it is further,

ORDERED that so much of the order dated October 7, 2008, as denied leave to renew is affirmed; and it is further,

ORDERED that one bill of costs is awarded to the respondent.

The Supreme Court properly exercised its discretion in denying that branch of the petitioner's motion which was for leave to renew since she failed to offer a reasonable excuse as why she did not present the alleged new facts on the prior motion (see Spectrum Painting Contrs, Inc. v Kreisler Borg Florman Gen. Constr. Co., Inc., 54 AD3d 748, Renna v Gullo, 19 AD3d 472). In any event, the additional facts would not have justified a change in the court's original determination (see CPLR 2221[e]). The petition was properly dismissed since the petitioner failed to demonstrate any of the grounds enumerated under CPLR 7511 for vacating an arbitration award (see CPLR 7511; see also Matter of Blamoski [Munson Transp.], 91 NY2d 190; Matter of Cardeon v New York Cent. Mut. Fire Ins. Co., 17 AD3d 1037).

The petitioner's remaining contentions are without merit.

DILLON, J.P., COVELLO, SANTUCCI and BELEN, JJ., concur.

20091110

© 1992-2009 VersusLaw Inc.



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