Donald P. Rosendale, Appellant, v. Harrison and Burrowes Bridge Constructors, Inc., Respondent

Donald P. Rosendale, Appellant, v Harrison and Burrowes Bridge Constructors, Inc., Respondent. [909 NYS2d 911] [MAJORITY] —In an action to recover damages for negligence, nuisance, trespass, and breach of contract, the plaintiff appeals from an order of the Supreme Court, Dutchess County (Pagones, J.), dated October 8, 2009, which denied his motion, denominated as one for leave to renew and reargue, but which was, in effect, one for leave to reargue that branch of the defendant’s prior motion which was to dismiss the complaint for failure to prosecute pursuant to CPLR 3216, which had been determined in a prior order of the same court dated July 20, 2009. Ordered that the appeal is dismissed, with costs. The plaintiffs motion, denominated as one for leave to renew or reargue, was not based on new facts not offered on the prior motion that would change the prior determination (see CPLR 2221 [e] [2]). Thus, the motion, although denominated as one for leave to renew and reargue, was, in actuality, a motion for leave to reargue, the denial of which is not appealable (see Frazzetta v P.C. Celano Contr., 54 AD3d 806 [2008]; Trahan v Galea, 48 AD3d 791, 792 [2008]; Eight In One Pet Prods, v Janeo Press, Inc., 37 AD3d 402 [2007]; Rivera v Toruno, 19 AD3d 473, 474 [2005]; Koehler v Town of Smithtown, 305 AD2d 550, 551 [2003]).