LIEBER REALTY LLC v. AMBER HEART MEDICAL (2008)

In an action to recover damages for breach of a lease, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Jacobson, J.), dated November 30, 2006, as denied its motion, denominated as one for leave to renew and reargue, but which was, in actuality, for leave to reargue the plaintiff's application to voluntarily discontinue the action, which had been granted in an order of the same court dated June 16, 2006.

ORDERED that the appeal is dismissed, without costs or disbursements.

The defendant's motion, denominated as one for leave to renew and reargue, was not based on new facts (see CPLR 2221[e][2];  Trahan v. Galea, 48 A.D.3d 791, 853 N.Y.S.2d 121).   Thus, the motion, although denominated as one for leave to renew and reargue, was, in actuality, a motion for leave to reargue, the denial of which is not appealable (see Trahan v. Galea, 48 A.D.3d 791, 853 N.Y.S.2d 121;  Matter of Mattie M. v. Administration for Children's Servs., 48 A.D.3d 392, 851 N.Y.S.2d 236).