LAU v. LUNGEN (1999)

Appeal from an order of the Supreme Court (Donohue, J.), entered May 27, 1998 in Sullivan County, which denied plaintiff's motion for reconsideration.

Plaintiff commenced this action in response to the decision of the Sullivan County District Attorney's office not to prosecute Cecelia Castellanos for allegedly abusing the power of attorney given to her by plaintiff and stealing plaintiff's money.   Following dismissal of the complaint upon motions by defendants, plaintiff moved, by order to show cause, for leave to renew based upon a December 9, 1996 transcript of a hearing at which plaintiff appeared and a copy of an unrelated felony complaint filed in a criminal prosecution in New York County against a defendant who abused a power of attorney.   Supreme Court denied plaintiff's motion, prompting this appeal.

 We affirm.   As found by Supreme Court, the evidence presented in support of plaintiff's motion to renew was not newly discovered evidence inasmuch as it was either available when the original motions to dismiss were made or immaterial to the merits of the action (see, Spa Realty Assocs. v. Springs Assocs., 213 A.D.2d 781, 783, 623 N.Y.S.2d 22).   Furthermore, to the extent that the court considered plaintiff's motion as one for reargument, we note that the denial thereof is not appealable (see, Matter of La Farge v. Town of Mamakating, 257 A.D.2d 752, 753, 683 N.Y.S.2d 344, 345, lv. denied 93 N.Y.2d 809;  Spa Realty Assocs. v. Springs Assocs., supra).

ORDERED that the order is affirmed, with costs.

MIKOLL, J.P.

MERCURE, CREW III, YESAWICH JR. and CARPINELLO, JJ., concur.