Opinion
6084 Index 301160/12
03-22-2018
Mark KOPLOWITZ, Plaintiff–Respondent, v. Edwin KING, Defendant–Appellant.
Joseph A. Altman, P.C., Bronx (Joseph A. Altman of counsel), for appellant. Deutsch & Schneider, LLP, Glendale (Doris Barkhordar of counsel), for respondent.
Joseph A. Altman, P.C., Bronx (Joseph A. Altman of counsel), for appellant.
Deutsch & Schneider, LLP, Glendale (Doris Barkhordar of counsel), for respondent.
Renwick, J.P., Manzanet–Daniels, Kahn, Kern, Singh, JJ.
Order, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered September 8, 2016, which, insofar as appealable, denied defendant's motion to renew (1) plaintiff's motion for specific performance of a contract to sell real property and (2) defendant's motion to reargue plaintiff's motion, and to vacate the order granting plaintiff's motion, unanimously affirmed, without costs.
This appeal is not moot as plaintiff failed to move to dismiss on that ground in this Court, submitting certain documents as exhibits, rather than improperly mentioning those documents in his appellate brief (see Chimarios v. Duhl, 152 A.D.2d 508, 509, 543 N.Y.S.2d 681 [1st Dept. 1989] ).
The denial of reargument is not appealable (see e.g. Corporan v. Dennis, 117 A.D.3d 601, 986 N.Y.S.2d 451 [1st Dept. 2014] ). Hence, we will address defendant's contentions with respect to renewal and vacatur only.
Plaintiff's failure to include his February 2012 letter when he moved for specific performance does not amount to "fraud, misrepresentation, or other misconduct" ( CPLR 5015[a][3] ) warranting vacatur. Contrary to defendant's claim, that letter does not show that he properly cancelled the parties' contract.
This is not a case that cries out for vacating an order in the interests of justice (see Woodson v. Mendon Leasing Corp., 100 N.Y.2d 62, 68, 760 N.Y.S.2d 727, 790 N.E.2d 1156 [2003] ). Defendant was represented by counsel when he entered into the contract at issue in this case.
There is no basis for renewal of defendant's motion for reargument; defendant does not claim that the law changed between February 2016 and April 2016, when he moved for renewal (see CPLR 2221[d][2] ; [e][2] ).
As for renewal of plaintiff's motion for specific performance, the February 2012 letter is not new evidence (see e.g. Matter of Weinberg, 132 A.D.2d 190 at 214, 522 N.Y.S.2d 511 [1st Dept. 1987] ). Even if we were to consider it, we would affirm the denial of the motion, because the letter "would not have warranted a different result" ( CPA Mut. Ins. Co. of Am. Risk Retention Group v. Weiss & Co., 80 A.D.3d 431, 432, 915 N.Y.S.2d 57 [1st Dept. 2011] ; CPLR 2221[e][2] ).