King v. Town Council

Dec 28, 2006
Versions:35 A.D.3d 1120
827 N.Y.S.2d 717

Carpinello, J. Appeal from a judgment of the Supreme Court (Stein, J.), entered August 19, 2005 in Greene County, which, in a combined proceeding pursuant to CPLR article 78 and action for declaratory judgment, denied petitioner‘s motion for reconsideration.

Petitioner commenced this hybrid CPLR article 78 proceeding and civil action seeking to compel respondents to remove portions of a guardrail which blocked access to stairs and a walkway on the premises where he resided. In the alternative, petitioner sought to recover monetary damages. Supreme Court thereafter granted a motion by respondents to dismiss the petition/complaint for failure to state a cause of action. Without appealing from that judgment, petitioner subsequently moved for reconsideration. Supreme Court denied that motion as well. Petitioner now appeals from the judgment denying reconsideration.

We affirm. Although petitioner did not specifically identify the nature of his motion, Supreme Court properly held that there was no basis for renewal inasmuch as he failed to set forth any newly discovered evidence and/or any justification for not originally offering that evidence (see Johnson v Title N., Inc., 31 AD3d 1071, 1071-1072 [2006]; Davidson v Ambrozewicz, 23 AD3d 903, 903 [2005]). To the extent that the motion can be construed as seeking reargument, no appeal lies from the denial of a motion to reargue (see Nichols v Turner, 6 AD3d 1009, 1010 [2004]; Hoffman v Pelletier, 6 AD3d 889, 890 [2004]). Each of the remaining contentions set forth by petitioner in his pro se brief has been considered and found to be without merit.

Mercure, J.P., Crew III, Lahtinen and Kane, JJ., concur.

Ordered that the judgment is affirmed, without costs.