| Dess v LRM Bldrs., LLC |
| 2008 NY Slip Op 09348 [56 AD3d 716] |
| November 25, 2008 |
| Appellate Division, Second Department |
| Leonid Dess et al., Appellants, v LRM Builders, LLC, etal., Respondents. |
—[*1] Woods Verzani, LLP, New York, N.Y. (James F. Woods of counsel), forrespondents.
In a consolidated action, inter alia, for specific performance of a contract for the sale of acondominium unit, and related proceeding, inter alia, to recover possession of that condominiumunit, the plaintiffs appeal from (1) so much of an order of the Supreme Court, Kings County(Partnow, J.), dated July 3, 2007, as denied their cross motion for leave to enter a defaultjudgment on the issue of liability against the defendants on the causes of action, inter alia, forspecific performance, and (2) an order of the same court dated September 4, 2007, which deniedtheir motion, denominated as one for leave to renew and reargue, but which was, in actuality, onefor leave to reargue, the defendants' motion to direct them to pay the value of use and occupancypertaining to the unit, which had been granted in the order dated July 3, 2007.
Ordered that the appeal from the order dated September 4, 2007, is dismissed, without costsor disbursements, as no appeal lies from an order denying reargument; and it is further,
Ordered that the order dated July 3, 2007, is modified, on the facts and in the exercise ofdiscretion, by adding the words "with leave to renew on proper papers" following the words"Plaintiff[s'] motion for default is denied"; as so modified, the order dated July 3, 2007, isaffirmed insofar as appealed from, without costs or disbursements.
The appeal from the order dated September 4, 2007, must be dismissed. The plaintiffs'motion, denominated as one for leave to renew and reargue, was, in actuality, one for leave toreargue, because it was not based on new facts (see CPLR 2221 [d] [2]; [e] [2];Somma v Richardt, 52 [*2]AD3d 813, 813 [2008];Cordero v Mirecle Cab Corp., 51 AD3d 707, 708 [2008]). An order denying a motion forleave to reargue is not appealable (see Somma v Richardt, 52 AD3d at 813; Cordero vMirecle Cab Corp., 51 AD3d at 708).
The Supreme Court properly denied the plaintiffs' cross motion for leave to enter a defaultjudgment on the issue of liability on the causes of action, inter alia, for specific performance. Insupport of that cross motion, the plaintiffs did not submit an affidavit of the facts, or a complaintverified by a party with personal knowledge thereof. However, the Supreme Court should havegiven the plaintiffs leave to renew their motion on proper papers (see Hosten v Oladapo,44 AD3d 1006, 1006 [2007]; Matone v Sycamore Realty Corp., 31 AD3d 721,721-722 [2006]; Blam v Netcher, 17 AD3d 495, 495-496 [2005]). We modify the orderdated July 3, 2007, accordingly. Prudenti, P.J., Mastro, Fisher and Dillon, JJ., concur.