| Reshevsky v United Water N.Y., Inc. |
| 2007 NY Slip Op 09570 [46 AD3d 532] |
| December 4, 2007 |
| Appellate Division, Second Department |
| Norma Reshevsky et al., Appellants, v United Water NewYork, Inc., Respondent. |
—[*1] Heidell, Pittoni, Murphy & Bach, LLP, New York, N.Y. (Daryl Paxson and Daniel S. Ratnerof counsel), for respondent.
In an action to recover damages for personal injuries and injury to property, the plaintiffsappeal from an order of the Supreme Court, Rockland County (Smith, J.), entered December 19,2006, which denied their motion for leave to renew and reargue the defendant's prior motion forsummary judgment, which had been granted in an order of the same court dated December 6,2005.
Ordered that the appeal from so much of the order entered December 19, 2006 as denied thatbranch of the plaintiffs' motion which was for reargument is dismissed; and it is further,
Ordered that order entered December 19, 2006 is affirmed insofar as reviewed; and it isfurther,
Ordered that the defendant is awarded one bill of costs.
The appeal from so much of the order entered December 19, 2006 as denied that branch ofthe plaintiffs' motion which was for reargument must be dismissed, as no appeal lies from anorder denying reargument (see Crawn vSayah, 31 AD3d 367 [2006]; Koehler v Town of Smithtown, 305 AD2d 550,551 [2003]).[*2]
Review of the order entered December 19, 2006 is furtherlimited by the dismissal, for lack of prosecution, of the plaintiffs' prior appeal from the originalorder dated December 6, 2005, by decision and order on motion of this Court dated January 11,2007. As a general rule, we do not consider any issue raised on a subsequent appeal that couldhave been raised in an earlier appeal which was dismissed for lack of prosecution (see Bray vCox, 38 NY2d 350 [1976]), although we have the inherent jurisdiction to do so (seeRubeo v National Grange Mut. Ins. Co., 93 NY2d 750, 756 [1999]; St. Claire v Gaskin,295 AD2d 336, 337 [2002]). In the instant case, there is no basis for such consideration.
Given this limited review, we affirm the denial of renewal on the ground that the plaintiffsfailed to offer a reasonable justification for failing to present the evidence offered in support ofrenewal in their opposition to the defendant's original motion (see CPLR 2221 [e]; Financial Pac. Leasing, LLC v D & D Wire,Inc., 44 AD3d 706 [2007]; State Farm Mut. Auto. Ins. Co. v Hertz Corp., 43 AD3d 907[2007]). The plaintiffs' contention that they "subsequently realized that a qualified expert, alicensed plumber, was needed" to interpret the evidence does not constitute a reasonablejustification since the plaintiffs were represented by counsel at the time the original motion wasmade and submitted expert opinion evidence in opposition to the defendant's original motion. Inany event, the affidavit of the plaintiffs' licensed plumber was insufficient to change the priordetermination (see State Farm Mut.Auto. Ins. Co. v Hertz Corp., 43 AD3d 907 [2007]). Crane, J.P., Goldstein, Florio andDillon, JJ., concur.