Riverdale Estates v. State of New York Division of Housing & Community Renewal

—Order, Supreme Court, Bronx County (Joseph Giamboi, J.), entered January 21, 1997, which, to the extent appealable, denied petitioner’s motion to renew, unanimously affirmed, without costs.

Renewal was properly denied since petitioner’s application was not based upon new factual matter excusably omitted from petitioner’s original submissions (see, Foley v Roche, 68 AD2d 558, 568). Petitioner’s claim that it did not submit reply papers on the original motion because it was unaware that the motion of respondent Division of Housing and Community Renewal, denominated as one to place the case on the calendar, also sought dismissal of the petition, is unavailing. Respondent’s intention to seek the petition’s dismissal was clearly expressed in four separate places in its motion papers, including the notice of motion. Concur — Milonas, J. P., Ellerin, Nardelli and Andrias, JJ.