| Deutsche Bank Natl. Trust Co. v Matheson |
| 2010 NY Slip Op 07716 [77 AD3d 883] |
| October 26, 2010 |
| Appellate Division, Second Department |
| Deutsche Bank National Trust Company,Respondent, v Marilyn E. Matheson, Appellant, et al.,Defendant. |
—[*1] Frenkel Lambert Weiss Weisman & Gordon, LLP, Bayshore, N.Y. (Linda P. Manfredi ofcounsel), for respondent.
In an action to foreclose a mortgage, the defendant Marilyn E. Matheson appeals (1), aslimited by her brief, from so much of an order of the Supreme Court, Dutchess County (Sproat,J.), dated May 15, 2009, as denied her motion for leave to reargue and renew her opposition tothe plaintiff's prior motion for summary judgment, which had been granted in an order of thesame court dated May 1, 2008, and (2) from a judgment of foreclosure and sale of the same courtdated December 14, 2009.
Ordered that the appeal from so much of the order dated May 15, 2009, as denied that branchof the defendant's motion which was for leave to reargue is dismissed; and it is further,
Ordered that the order dated May 15, 2009, is affirmed insofar as reviewed; and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
The appeal from so much of the order dated May 15, 2009, as denied that branch of thedefendant's motion which was for reargument must be dismissed, as no appeal lies from an orderdenying reargument (see Crawn vSayah, 31 AD3d 367 [2006]; Koehler v Town of Smithtown, 305 AD2d 550,551 [2003]).
In support of that branch of her motion which was for leave to renew, the appellant needed toproffer either new facts which were unavailable at the time of the prior motion or a reasonablejustification for the failure to have presented such facts on the prior motion (see CPLR2221 [e]; New York Tel. Co. vSupervisor of Town of N. Hempstead, 76 AD3d 517 [2010]; Crystal House Manor, Inc. v Totura, 29AD3d 933, 933 [2006]). Review in this Court is limited by the dismissal of the appellant'sprior appeal from the order dated May 1, 2008. As a general rule, we do not consider any issueraised on a subsequent [*2]appeal that could have been raised inan earlier appeal which was dismissed for lack of prosecution (see Bray v Cox, 38 NY2d350, 353 [1976]), although we have the inherent jurisdiction to do so (see Rubeo v NationalGrange Mut. Ins. Co., 93 NY2d 750, 756 [1999]; St. Claire v Gaskin, 295 AD2d336, 337 [2002]). The appellant has not demonstrated any basis for the exercise of suchdiscretion.
Given this limited review, we affirm the denial of renewal on the ground that the defendantfailed to offer new facts which were unavailable at the time of the original motion or to provide areasonable justification for failing to present such facts in her opposition to the original motion(see CPLR 2221 [e]; New YorkTel. Co. v Supervisor of Town of N. Hempstead, 76 AD3d 517 [2010]; Crystal House Manor, Inc. v Totura, 29AD3d 933, 933 [2006]). Skelos, J.P., Balkin, Chambers and Austin, JJ., concur.