Opinion
11-16-2017
In re James PETTUS, et al., Petitioners–Appellants, v. BOARD OF DIRECTORS, et al., Respondents–Respondents.
James Pettus, appellant pro se. Charlene Thompson, appellant pro se. Boyd Richards Parker Colonnelli, P.L., New York (Bryan J. Mazzola of counsel), for respondents.
James Pettus, appellant pro se.
Charlene Thompson, appellant pro se.
Boyd Richards Parker Colonnelli, P.L., New York (Bryan J. Mazzola of counsel), for respondents.
RENWICK, J.P., MANZANET–DANIELS, ANDRIAS, KERN, OING, JJ.
Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered June 30, 2015, which, among other things, granted respondents' motion to dismiss the petition pursuant to CPLR 3211(a)(1) and (7), unanimously affirmed, without costs. Appeal from order, same court (Norma Ruiz, J.), entered February 2, 2016, which denied petitioners' motion to reargue (denominated a motion to renew and reargue), unanimously dismissed, without costs, as taken from a nonappealable order.
Petitioners, a married couple, allege that respondents, the board of directors and managing agent of the cooperative where they reside, and of which petitioner Thompson is a shareholder, abused its discretion in crediting Thompson's monthly maintenance bill in the amount of her shares of a tax abatement and New York State School Tax Relief (STAR) refund, rather than issuing a check in the amount of the abatement and refund. Petitioners do not challenge the amount credited, only that it was passed on to Thompson as a credit, rather than paid directly.
Supreme Court correctly dismissed the petition for failure to state a cause of action and based on the documentary evidence ( CPLR 3211[a][1], [7] ), as respondents' actions complied with Real Property Tax Law § 425(2)(k)(iii)(B)(I), as well as the cooperative's bylaws (see Village In The Woods Owners Corp. v. Powles, 25 Misc.3d 10, 887 N.Y.S.2d 757 [App.Term, 2d Dept.2009] ).
Petitioners' motion denominated as one for leave to renew and reargue was not based on new facts unavailable at the time of the original motion, and thus was actually a motion for leave to reargue, the denial of which is not appealable (see D'Alessandro v. Carro, 123 A.D.3d 1, 3, 992 N.Y.S.2d 520 [1st Dept.2014] ; Grosso Moving & Packing Co. v. Damens, 233 A.D.2d 128, 128, 649 N.Y.S.2d 136 [1st Dept.1996] ; CPLR 2221[e][2] ). That the motion was decided by a Justice other than the Justice who signed the underlying order of dismissal does not compel a different result, given that the CPLR permits sua sponte recusals and reassignments of such motions (see CPLR 2221[a] ; C & N Camera & Elecs. v. Public Serv. Mut. Ins. Co., 210 A.D.2d 132, 133, 621 N.Y.S.2d 843 [1st Dept.1994] ; Fabiano v. Philip Morris Inc., 29 Misc.3d 395, 401, 909 N.Y.S.2d 314 [Sup.Ct., N.Y. County 2010] ).
We have considered petitioners' remaining arguments and find them unavailing.