IN RE: the Application of Dynamite Properties (2026)

Petitioner, Dynamite Properties, Inc. ("Petitioner"), moves for leave to reargue, pursuant to Civil Practice Law and Rules ("CPLR") § 2221(d), the Decision and Order of this Court dated May 5, 2026, which denied the petition and dismissed this CPLR Article 78 proceeding (NYSCEF Doc. No. 31). Petitioner expressly limits the scope of the instant motion to "the Court's determination that the proposed 'Trailside Estates' access route constituted a feasible alternative to the requested are[a] variance" (Affirmation of Michael V. Caruso, Esq. [NYSCEF Doc. No. 35], ¶ 2). The Town of Somers Zoning Board of Appeals ("Respondent") has submitted opposition to the instant motion to reargue, and Petitioner has submitted a reply.

A motion for leave to reargue must be "based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion " (CPLR § 2221[d][2]). Such a motion is not designed to provide an unsuccessful party with successive opportunities to reargue previously decided issues or to present arguments different from those originally made (see Ahmed v Pannone, 116 AD3d 802, 805 [2d Dept. 2014]). The determination of such a motion lies within the sound discretion of the court (see id.; Rodney v New York Pyrotechnic Prods. Co., 112 AD2d 410, 411 [2d Dept. 1985]; CPLR § 2221[a]).

An Article 78 proceeding is a special proceeding and, as such, concludes in a judgment (see CPLR §§ 411, 7804[a], 7806). A Decision and Order that dismisses an Article 78 petition on the merits, though denominated an order, constitutes a final judgment (see id.; CRP/Extell Parcel I, L.P. v Cuomo, 27 NY3d 1034, 1037 [2016]; Matter of De Paula v Memory Gardens, 90 AD2d 886, 886 [3d Dept 1982]). "Since a judgment dismissing a CPLR article 78 petition is a final judgment terminating the proceeding, CPLR 2221 is not the proper procedural mechanism to address the judgment" (Matter of Stafford v Incorporated Vil. of Rockville Ctr., 210 AD3d 682, 684 [2d Dept 2022], quoting Matter of Franco Belli Plumbing & Heating & Sons, Inc. v New York City Sch. Constr. Auth., 142 AD3d 1011, 1011 [2d Dept 2016]. See also Matter of Mulhern v Touro Coll., 226 AD3d 788, 789 [2d Dept 2024]).

In the instant motion, Petitioner challenges one particular finding by the Court, but it is nevertheless a challenge to the operative final judgment, and, therefore, a motion to reargue under CPLR § 2221(d) is not the appropriate procedural vehicle (see id.). Accordingly, it is hereby

ORDERED that Petitioner's motion to reargue (motion sequence #2) is denied.

This constitutes the Decision and Order of the Court.

Dated: August 24, 2026

White Plains, New York

HON. SHERALYN PULVER

Acting Supreme Court Justice

Sheralyn Pulver, J.