CLEARVIEW FARMS LLC PLAINTIFF APPELLANT v. DAVID PAPKE AND MICHELLE OLDS DEFENDANTS RESPONDENTS (2015)

MEMORANDUM AND ORDER

It is hereby ORDERED that said appeal is unanimously dismissed without costs.

Memorandum:  Plaintiff commenced this action seeking damages for defendants' breach of their residential lease agreement with plaintiff.   After a bench trial, Supreme Court reached a verdict in favor of plaintiff and thereafter issued an order awarding plaintiff $1,676.66 for unpaid rent and utilities, without prejudgment interest, and $150 for attorney's fees.   Plaintiff did not appeal that order and instead filed a motion to “modify” the court's order to include prejudgment interest.   Although plaintiff denominated the motion as one to “modify” the court's order, we conclude from the papers submitted in support of the motion that it was, in effect, a motion for leave to reargue the denial of prejudgment interest, which the court denied (see Matter of Hoover v. Derry, 3 AD3d 659, 659;  C.R. v Pleasantville Cottage School, 302 A.D.2d 259, 260).   No appeal lies from an order denying a motion for leave to reargue (see Hill v. Milan, 89 AD3d 1458, 1458;  Empire Ins. Co. v. Food City, 167 A.D.2d 983, 984).

We decline to impose sanctions or to award attorney's fees, costs, or disbursements to defendants, as defendants request in their brief.   Such action is not warranted inasmuch as we conclude that plaintiff's appeal does not constitute “frivolous conduct” as defined in 22 NYCRR 130–1.1(c) (see Amherst Magnetic Imaging Assoc. v Community Blue, HMO of Blue Cross of W. N.Y., 286 A.D.2d 896, 898, lv denied 97 N.Y.2d 612).

Frances E. Cafarell

Clerk of the Court