Santiago v. New York City Housing Authority

Appeal from an order of the Supreme Court, New York County (Carol Arber, J.), *115entered October 13, 1995, which denied defendant’s motion for reargument of an order of the same court entered April 17, 1995, denying defendant’s motion for summary judgment dismissing the complaint, unanimously dismissed, without costs, as taken from a non-appealable order.

Defendant’s motion for reargument consisted of a reiteration of the arguments made on the original motion for summary judgment based upon the case law on which defendant had relied. No new facts or evidence were presented to the court and defendant specifically stated that the motion was based upon defendant’s belief that the court misapplied the controlling principles of law. The IAS Court in its decision explicitly stated that it was denying defendant’s motion for reargument and no appeal lies from an order denying a motion for reargument (Bell v Toothsavers, Inc., 213 AD2d 199). We note, however, that if an appeal had been timely taken from the court’s decision we would have reversed and granted summary judgment dismissing the complaint (see, Martinez v Lazaroff, 48 NY2d 819; Abreu v Stratford Realty Assocs., 208 AD2d 465). Concur — Ellerin, J. P., Wallach, Kupferman, Williams and Mazzarelli, JJ.