Opinion
92316
May 1, 2003.
Appeal from an order of the Supreme Court (Rumsey, J.), entered October 18, 2001 in Broome County, which denied plaintiff's motion to renew.
Epstein, Becker Green P.C., New York City (Stephen E. Powers of counsel), for appellant.
William L. Gibson Jr., County Attorney, Binghamton (Robert G. Behnke of counsel), for respondents.
Before: Mercure, J.P., Crew III, Peters, Rose and Lahtinen, JJ.
MEMORANDUM AND ORDER
In 1996, plaintiff and Edward Swart took civil service exams for the position of Broome County Probation Director. Plaintiff and Swart, who were the two deputy directors at that time, both qualified. After the Broome County Executive, defendant Timothy Grippen, interviewed plaintiff and Swart, he appointed Swart to the position of temporary Probation Director. Ultimately, Swart was appointed Probation Director.
Plaintiff commenced this action against Grippen and Broome County, alleging that he was not offered the position because he changed his party affiliation from Democrat to Republican in 1994. Following joinder of issue, defendants moved for summary judgment seeking dismissal of the complaint. Defendants submitted deposition testimony from Grippen indicating that he based his decision on plaintiff's interview, during which plaintiff's posture was "defensive." Grippen also stated that he found plaintiff's approach to be bureaucratic and that he was concerned that plaintiff was uncooperative and difficult. Plaintiff failed to submit evidence contradicting these contentions in opposing the motion. Supreme Court granted defendants' motion and dismissed the complaint. Plaintiff subsequently made a motion to renew. Supreme Court denied that motion and plaintiff now appeals.
This Court has consistently held that a motion to renew must be based upon newly discovered evidence which existed at the time the prior motion was made, but was unknown to the party seeking renewal, along with a justifiable excuse as to why the new information was not previously submitted (see Carota v. Wu, 284 A.D.2d 614, 617; N.A.S. Partnership v. Kligerman, 271 A.D.2d 922, 922-923; Maines Paper Food Serv. v. Farmington Foods, 233 A.D.2d 595, 596; Matter of Jones v. Marcy, 135 A.D.2d 887, 888). In connection with his motion to renew, plaintiff presented evidence relating to the credibility of defendants' witnesses and their explanation for declining to appoint him to the position of Probation Director. Plaintiff concedes, however, that this evidence was not newly discovered. Accordingly, we perceive no error in Supreme Court's denial of the motion. Moreover, to the extent that the court considered plaintiff's motion as one for reargument, the denial thereof is not appealable (see e.g. Lau v. Sullivan County Dist. Attorney Stephen F. Lungen, 264 A.D.2d 912, lv dismissed 95 N.Y.2d 825, cert denied 531 U.S. 1082). Plaintiff's remaining contentions are either not properly presented for our review or lacking in merit.
Crew III, Peters, Rose and Lahtinen, JJ., concur.
ORDERED that the order is affirmed, without costs.