Rockport Construction Co. v. Boston-Williamsbridge Corp.

Appeal from order, Supreme Court, Bronx County (Luis Gonzalez, J.), entered on or about January 26, 1996, which denied plaintiff s motion to reargue a prior order dismissing the complaint for failure to prosecute, unanimously dismissed, without costs, as taken from a nonappealable order.

Although plaintiff characterized its motion as one to renew as well as reargue the prior order, from which it did not appeal, in fact the motion was not based on any facts not before the court on the prior motion, and was therefore properly considered as one for reargument only, the denial of which is nonappealable (see, Pan World Constr. Corp. v 791 Park Ave. Corp., 185 AD2d 105, 107, lv dismissed and denied 80 NY2d 1005). Were we to reach the merits, we would affirm since the record demonstrates that plaintiff failed to file a timely note of issue, or set forth a justifiable excuse for its delay in doing so. Concur—Rosenberger, J. P., Ellerin, Tom and Mazzarelli, JJ.