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

1143
CA 14-00508
PRESENT: CENTRA, J.P., FAHEY, SCONIERS, WHALEN, AND DEJOSEPH, JJ.


SHANA FUENTES, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

KEITH A. HOFFMAN, ET AL., DEFENDANTS,
MARIO BEVIVINO AND ANTONIA BEVIVINO,
DEFENDANTS-RESPONDENTS.


ATHARI & ASSOCIATES, LLC, NEW HARTFORD (MO ATHARI OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

BAILEY, KELLEHER & JOHNSON, P.C., ALBANY (MARC J. KAIM OF COUNSEL),
FOR DEFENDANTS-RESPONDENTS.


      Appeal from an order of the Supreme Court, Oneida County (Patrick
F. MacRae, J.), entered January 10, 2014. The order denied the motion
of plaintiff for leave to reargue and renew the motion of defendants
Mario Bevivino and Antonia Bevivino to dismiss the complaint against
them.

     It is hereby ORDERED that said appeal from the order insofar as
it denied leave to reargue is unanimously dismissed and the order is
otherwise affirmed without costs.

     Memorandum: On a prior appeal, we held that Supreme Court
properly granted the motion of Mario Bevivino and Antonia Bevivino
(defendants) pursuant to CPLR 3215 (c) to dismiss the complaint
against them as abandoned (Fuentes v Hoffman, 118 AD3d 1324).
Plaintiff thereafter moved for leave to reargue or to renew that
motion (see CPLR 2221 [d], [e]) and, alternatively, for vacatur of the
court’s dismissal order on the ground that it had been procured by
fraud, misrepresentation, or other misconduct of defendants’ attorney
(see CPLR 5015 [a] [3]). The court denied the motion. As a
preliminary matter, we note that the appeal from the order insofar as
it denied that branch of plaintiff’s motion seeking leave to reargue
must be dismissed because “no appeal lies from an order denying leave
to reargue” (Hill v Milan, 89 AD3d 1458, 1458).

     We conclude that the court properly denied that branch of the
motion seeking leave to renew. “A motion for leave to renew ‘shall be
based upon new facts not offered on the prior [application] that would
change the prior determination’ (CPLR 2221 [e] [2]), and ‘shall
contain reasonable justification for the failure to present such facts
on the prior [application]’ (CPLR 2221 [e] [3])” (Doe v North
                                 -2-                          1143
                                                         CA 14-00508

Tonawanda Cent. Sch. Dist., 91 AD3d 1283, 1284; see Jones v City of
Buffalo Sch. Dist., 94 AD3d 1479, 1479). We conclude that plaintiff
failed to establish that her purported new facts were not in existence
at the time of the prior motion, and that she also did not meet her
burden of setting forth a reasonable justification for the failure to
present such facts on the prior motion (see generally DiPizio Constr.
Co., Inc. v Erie Canal Harbor Dev. Corp., 120 AD3d 909, 910; Chiappone
v William Penn Life Ins. Co. of N.Y., 96 AD3d 1627, 1627).

     We further conclude that the court properly denied plaintiff’s
alternative request for relief pursuant to CPLR 5015 (a) (3) (see
generally Matter of Wagner, 114 AD3d 1235, 1237; Abbott v Crown Mill
Restoration Dev., LLC, 109 AD3d 1097, 1100). Finally, we have
considered plaintiff’s remaining contention, and we conclude that it
is without merit.




Entered:   November 14, 2014                   Frances E. Cafarell
                                               Clerk of the Court
