        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

39
CA 14-01300
PRESENT: SMITH, J.P., FAHEY, CARNI, VALENTINO, AND WHALEN, JJ.


CLEARVIEW FARMS LLC, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

DAVID PAPKE AND MICHELLE OLDS,
DEFENDANTS-RESPONDENTS.


ANDREW J. DICK, ROCHESTER, FOR PLAINTIFF-APPELLANT.

LAW OFFICE OF HEIDI W. FEINBERG, ROCHESTER (HEIDI W. FEINBERG OF
COUNSEL), FOR DEFENDANTS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Monroe County (Thomas
A. Stander, J.), entered January 30, 2014. The order, among other
things, denied plaintiff’s motion to modify an order dated November
19, 2013.

     It is hereby ORDERED that said appeal is unanimously dismissed
without costs.

     Memorandum: Plaintiff commenced this action seeking damages for
defendants’ breach of their residential lease agreement with
plaintiff. After a bench trial, Supreme Court reached a verdict in
favor of plaintiff and thereafter issued an order awarding plaintiff
$1,676.66 for unpaid rent and utilities, without prejudgment interest,
and $150 for attorney’s fees. Plaintiff did not appeal that order and
instead filed a motion to “modify” the court’s order to include
prejudgment interest. Although plaintiff denominated the motion as
one to “modify” the court’s order, we conclude from the papers
submitted in support of the motion that it was, in effect, a motion
for leave to reargue the denial of prejudgment interest, which the
court denied (see Matter of Hoover v Derry, 3 AD3d 659, 659; C.R. v
Pleasantville Cottage School, 302 AD2d 259, 260). No appeal lies from
an order denying a motion for leave to reargue (see Hill v Milan, 89
AD3d 1458, 1458; Empire Ins. Co. v Food City, 167 AD2d 983, 984).

     We decline to impose sanctions or to award attorney’s fees,
costs, or disbursements to defendants, as defendants request in their
brief. Such action is not warranted inasmuch as we conclude that
plaintiff’s appeal does not constitute “frivolous conduct” as defined
in 22 NYCRR 130-1.1 (c) (see Amherst Magnetic Imaging Assoc. v
Community Blue, HMO of Blue Cross of W. N.Y., 286 AD2d 896, 898, lv
                              -2-                   39
                                             CA 14-01300

denied 97 NY2d 612).




Entered:   February 6, 2015         Frances E. Cafarell
                                    Clerk of the Court
