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

750
CA 13-01410
PRESENT: SMITH, J.P., CENTRA, CARNI, WHALEN, AND DEJOSEPH, JJ.


IN THE MATTER OF PAUL KAIRIS,
PETITIONER-APPELLANT,

                    V                             MEMORANDUM AND ORDER

HAROLD D. GRAHAM, SUPERINTENDENT, AUBURN
CORRECTIONAL FACILITY, RESPONDENT-RESPONDENT.


PAUL KAIRIS, PETITIONER-APPELLANT PRO SE.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (MARTIN A. HOTVET OF
COUNSEL), FOR RESPONDENT-RESPONDENT.


     Appeal from an order of the Supreme Court, Cayuga County (Mark H.
Fandrich, A.J.), entered March 7, 2013 in a proceeding pursuant to
CPLR article 78. The order denied petitioner’s motion to vacate a
judgment entered September 27, 2011 and an order entered May 7, 2012.

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

     Memorandum: Petitioner was previously determined, following a
tier II hearing, to be guilty of violating certain inmate rules and,
according to petitioner, his administrative appeal of the
determination was “lost.” Petitioner thereafter commenced this CPLR
article 78 proceeding contending, inter alia, that respondent had
failed to decide his administrative appeal. Supreme Court dismissed
the petition by judgment entered in September 2011 (judgment).
Petitioner’s appeal from the judgment was dismissed by this Court.
Petitioner moved pursuant to CPLR 5015 for relief from the judgment
based on, inter alia, newly discovered evidence and, by order entered
in May 2012, the court denied that motion. Petitioner did not take an
appeal from that order, but again moved to vacate the judgment, as
well as the order, “upon the grounds of newly discovered evidence.”
The court treated petitioner’s motion as one for leave to reargue and
renew his prior motion (see CPLR 2221 [d], [e]), and the order denying
that motion is the subject of this appeal.

     As a preliminary matter, we note that it is “well settled that no
appeal lies from an order denying a motion [for leave] to reargue”
(Hilliard v Highland Hosp., 88 AD3d 1291, 1292-1293), and we therefore
dismiss the appeal from the order to that extent.
                                 -2-                           750
                                                         CA 13-01410

     “[A] motion for leave to renew must be ‘based upon new facts not
offered on the prior motion that would change the prior
‘determination’ ” (Heltz v Barratt, 115 AD3d 1298, 1299). “[A] motion
for leave to renew ‘is not a second chance freely given to parties who
have not exercised due diligence in making their first factual
presentation’ ” (id. at 1300). Here, petitioner failed to present any
new facts sufficient to support a motion pursuant to CPLR 2221 (e).
Contrary to petitioner’s contention, he did not identify a new fact by
noting that a copy of his affidavit submitted to the Hearing Officer
at the tier II hearing was not appended to the answer to the petition.
Indeed, the court specifically stated that it had received the
“missing affidavit” prior to issuing its judgment. Contrary to
petitioner’s further contention, he did not identify a new fact by
noting that a significant portion of testimony was missing from one of
the transcripts. Petitioner had previously raised a mere variation of
that point in his reply to the answer. We therefore agree with
respondent that petitioner offered no basis for the court to “change
[its] prior determination” (CPLR 2221 [e] [2]).




Entered:   June 20, 2014                       Frances E. Cafarell
                                               Clerk of the Court
