Distinctive Ventures, LLC v. Cooper Advisory Services, Inc. , 951 N.Y.S.2d 879 ( 2012 )

— In an action, inter alia, to recover damages pursuant to Real Property Law § 442-e based on alleged receipt of a commission for brokerage services without a license, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Driscoll, J.), dated August 13, 2010, as denied that branch of its motion which was denominated as one, inter alia, to conform the pleadings to the proof, but which was, in actuality, one for leave to reargue and renew that branch of its prior motion which was for summary judgment on the issue of the personal liability of the defendant Gary Cooper, which had been denied in an order of the same court dated May 12, 2010.

Ordered that the appeal from so much of the order dated August 13, 2010, as denied that branch of the plaintiffs motion which was, in actuality, for leave to reargue is dismissed, as no appeal lies from an order denying reargument; and is further,

Ordered that the order dated August 13, 2010, is affirmed insofar as reviewed; and it is further,

Ordered that one bill of costs is awarded to the defendant Gary Cooper.

Contrary to the plaintiff’s contention, the motion that resulted in the order dated August 13, 2010, cannot properly be characterized as a motion to conform the pleadings to the proof (see CPLR 3025 [c]).

That branch of the plaintiffs motion which was, in actuality, for leave to renew that branch of its motion which was for summary judgment on the issue of the personal liability of the defendant Gary Cooper was properly denied, since there was no reasonable justification for failing to submit the purportedly new evidence in support of the original motion (see Healy v Damus, 88 AD3d 848 [2011]; Rowe v NYCPD, 85 AD3d 1001, 1003 [2011]; Matter of Leone Props., LLC v Board of Assessors for Town of Cornwall, 81 AD3d 649, 652 [2011]). Balkin, J.P., Eng, Leventhal and Chambers, JJ., concur.

Motion by the respondent to dismiss an appeal from an order of the Supreme Court, Nassau County, dated August 13, 2010, on the grounds that it was untimely taken, that no appeal lies from an order denying reargument, and that it has been rendered academic. By decision and order of this Court dated July 8, 2011, the branches of the motion which were to dismiss the appeal on the ground that no appeal lies from an order denying reargument, and on the ground that the appeal has been rendered academic, were held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the argument of the appeal, it is

Ordered that the branch of the motion which is to dismiss the appeal on the ground that no appeal lies from an order denying reargument is denied as academic in light of the determination of the appeal; and it is further,

Ordered that the branch of the motion which is to dismiss the appeal on the ground that the appeal has been rendered academic is denied. Balkin, J.P., Eng, Leventhal and Chambers, JJ., concur.