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In the Matter of Patrick v. Director of Trc Programs

State of New York Supreme Court, Appellate Division Third Judicial Department


May 26, 2011

IN THE MATTER OF PATRICK KELLY, APPELLANT,
v.
DIRECTOR OF TRC PROGRAMS ET AL., RESPONDENTS.

Appeal from an order of the Supreme Court (Zwack, J.), entered October 20, 2010 in Albany County, which, in a proceeding pursuant to CPLR article 78, denied petitioner's motion to renew and/or reargue.

MEMORANDUM AND ORDER

Calendar Date: April 6, 2011

Before: Spain, J.P., Malone Jr., Kavanagh, Garry and Egan Jr., JJ.

Petitioner, an inmate, submitted an application to participate in a temporary work release program, but it was denied by the Central Office Review staff and the denial was later upheld on administrative appeal. As a result, petitioner commenced a CPLR article 78 proceeding challenging this determination. Following joinder of issue, Supreme Court dismissed the proceeding. Petitioner, in turn, made a motion to renew and/or reargue, and Supreme Court denied the motion. Petitioner now appeals.

As an initial matter, we note that petitioner has limited his appeal to the order denying his motion to renew and/or reargue. It is well settled that no appeal lies from the denial of a motion for reargument (see Abele Tractor & Equip. Co., Inc. v RJ Valente, Inc., 79 AD3d 1331, 1332 [2010]; Matter of Karlin v Goord, 18 AD3d 906, 907 n [2005], lv denied 5 NY3d 717 [2005]). Moreover, "a motion to renew must be based upon newly discovered evidence which existed at the time the prior motion was made, but was unknown to the party seeking renewal, along with a justifiable excuse as to why the new information was not previously submitted" (Wahl v Grippen, 305 AD2d 707, 707 [2003]; see CPLR 2221; 2 N. St. Corp. v Getty Saugerties Corp., 68 AD3d 1392, 1396 [2009], lv denied 14 NY3d 706 [2010]; Tibbits v Verizon N.Y., Inc., 40 AD3d 1300, 1302-1303 [2007]). A review of petitioner's papers reveals that he has not made the necessary showing to establish that his motion is one for renewal. Consequently, inasmuch as the appeal is from the denial of a motion for reargument, it must be dismissed.

Spain, J.P., Malone Jr., Kavanagh, Garry and Egan Jr., JJ., concur.

ORDERED that the appeal is dismissed, without costs.

ENTER:

Robert D. Mayberger Clerk of the Court

20110526

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