Iocovello v. City of New York

May 18, 2000
Versions:272 A.D.2d 201
708 N.Y.S.2d 294
2000 N.Y. App. Div. LEXIS 5662

—Appeal from order, Supreme Court, New York County (William Wetzel, J.), entered November 23, 1999, which denied petitioner’s motion to reargue respondents’ previously granted motion to dismiss petitioner’s application pursuant to CPLR article 78, which application sought a writ of mandamus to compel the municipal respondents to conduct an investigation into his termination from the Department of Sanitation, unanimously dismissed, without costs.

Since petitioner failed to set forth new or additional facts in support of his motion, the motion was properly considered, and denied in the appealed order, as one for reargument only. It follows that petitioner’s appeal must be dismissed, since no appeal lies from the denial of reargument (see, Mariani v Dyer, 193 AD2d 456, 458, lv denied 82 NY2d 658). In any case, were the appealed order reviewable, we would affirm because the decision not to conduct an investigation was a matter of discretion and the remedy of mandamus does not lie to compel action involving the exercise of discretion or judgment (see, Matter of Mullen v Axelrod, 74 NY2d 580, 582). Concur — Williams, J. P., Tom, Mazzarelli and Buckley, JJ.