Town of Babylon v. Tully Construction Co.

—In an action, inter alia, for a judgment declaring a letter agreement between the parties dated May 9, 1995, and an arbitration clause contained therein, as “void, a nullity and of no legal force and effect”, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Gerard, J.), entered June 25, 1997, which denied its motion, in effect, to reargue so much of a prior order of the same court, dated January 23, 1997, as denied its motion to stay arbitration and granted the defendant’s cross motion to compel arbitration, and, in effect, dismissed the second cause of action in the complaint.

Ordered that the appeal is dismissed, with costs to the respondent.

The plaintiff moved for partial summary judgment on the second cause of action in its complaint. However, that issue was effectively determined by a prior order dated January 23, 1997, which was affirmed by this Court (see, Town of Babylon v Tully Constr. Co., 242 AD2d 703). Thus, the Supreme Court properly considered the plaintiffs motion as a motion for reargument, the denial of which is not appealable (see, Matter of Brooklyn Welding Corp. v Chin, 236 AD2d 392; Mucciola v City of New York, 177 AD2d 553). Ritter, J. P., Altman, Krausman and McGinity, JJ., concur.