Opinion
May 27, 1988
Appeal from the Supreme Court, Erie County, Ostrowski, J.
Present — Dillon, P.J., Green, Pine, Balio and Davis, JJ.
Order unanimously modified on the law and as modified affirmed without costs, in accordance with the following memorandum: No appeal lies from the denial of a motion for reargument, and plaintiffs' appeal from that portion of the court's order is dismissed (Matter of Mendez v Valenti, 101 A.D.2d 612, lv denied 62 N.Y.2d 606; Phillips v Village of Oriskany, 57 A.D.2d 110). We further note that if plaintiffs' application had been treated as one for renewal, denial of that relief would have been proper because no valid excuse was offered for failing to submit the additional facts at the time of the original application (McRory v Craft Architectural Metals Corp., 112 A.D.2d 358; Foley v Roche, 68 A.D.2d 558).
The affidavits and documents submitted on the motion to reargue were not before the court on the initial application for summary judgment, and those new facts may not be injected at the appellate level (Matter of Bligen v Kelly, 126 A.D.2d 989; Broida v Bancroft, 103 A.D.2d 88). Accordingly, we modify that portion of the order settling the record on appeal for the summary judgment proceeding by deleting the material appearing at pages 283 through 336 of the printed record.