| Matter of Butler v City of Rye Planning Commn. |
| 2014 NY Slip Op 01320 [114 AD3d 937] |
| February 26, 2014 |
| Appellate Division, Second Department |
| In the Matter of Robert Butler et al.,Respondents, v City of Rye Planning Commission et al.,Appellants. |
—[*1] Rivkin Radler LLP, Uniondale, N.Y. (Evan H. Krinick, Cheryl F. Korman, andMerril S. Biscone of counsel), for appellants Daniel Mathisson and Helene Mathisson. Keane & Beane, P.C., White Plains, N.Y. (Edward F. Beane, Eric L. Gordon, andPhilip A. Butler of counsel), for respondents.
In a proceeding pursuant to CPLR article 78 to review a determination of the City ofRye Planning Commission dated October 11, 2011, which granted the application ofDaniel Mathisson and Helene Mathisson to modify a front yard setback line on a certainsubdivision map, the City of Rye Planning Commission appeals, and Daniel Mathissonand Helene Mathisson separately appeal, from an order and judgment (one paper) of theSupreme Court, Westchester County (Lorenzo, J.), dated June 4, 2012, which granted thepetitioners' motion for leave to renew and reargue the petition, and upon renewal andreargument, vacated a prior judgment of the same court dated March 19, 2012, denyingthe petition and dismissing the proceeding, and thereupon granted the petition andannulled the determination.
Ordered that the order and judgment is reversed, on the law, the petitioners' motionfor leave to renew and reargue is denied, and the judgment dated March 19, 2012, isreinstated, with one bill of costs to the appellants appearing separately and filing separatebriefs.
The Supreme Court should have denied that branch of the petitioners' motion whichwas for leave to renew the petition, as the new evidence that the petitioners submitted insupport of that branch of their motion did not alter the analysis applicable to the petition(see CPLR 2221 [e] [2]; see generally Kaya v B & G Holding Co., LLC, 101 AD3d685, 687 [2012]). Moreover, the petitioners did not provide sufficient justificationfor their failure to submit this new evidence with the petition (see CPLR 2221 [e][3]; see generally Matter ofCatherine V.D. [Rachel G.], 100 AD3d 992, 993 [2012]; Walsh v Schmigelski, 35AD3d 849 [2006]).
The Supreme Court also should have denied that branch of the petitioners' motionwhich was for leave to reargue the petition, as there is no indication that the courtmisapprehended [*2]the facts or law, or mistakenlyarrived at its earlier decision (see CPLR 2221 [d] [2]; Capstone Bus. Credit, LLC vImperia Family Realty, LLC, 70 AD3d 882, 884 [2010]; Matter of Williams v Board ofEduc. of City School Dist. of City of N.Y., 24 AD3d 458, 459 [2005]; Daluise v Sottile, 15 AD3d609 [2005]).
In light of our determination, we need not reach the appellants' remainingcontentions. Mastro, J.P., Cohen, Miller and Hinds-Radix, JJ., concur.