Weinfeld v. J. Robert Roth Associates, Inc. (177 A.D.2d 977, 1991)

Appeal from order by defendants J. Robert Roth Associates, Inc., and Roth unanimously dismissed and otherwise order affirmed with costs. Memorandum: Since the motion of defendants Jay Robert Roth and J. Robert Roth Associates, Inc., relied on the same argument advanced in their prior motion and presented no new matter which was unavailable to them prior to the denial of such previous motion, the motion was, in reality, a motion to reargue (see, Empire Ins. Co. v Food City, 167 AD2d 983). Thus, the order from which said defendants seek to appeal was, in fact, an order denying a motion to reargue, and such orders are not appealable (Empire Ins. Co. v Food City, supra). In any event, Supreme Court properly denied all of the defendants’ motions for summary judgment, since the issue whether plaintiff fell on a “sidewalk”, as that term is used in section 83-9-5 (5-1) of the Town of Amherst Code, presents a question of fact to be determined at trial. (Appeals from Order of Supreme Court, Erie County, Wolf, J.—Summary Judgment.) Present—Callahan, A. P. J., Doerr, Boomer, Balio and Lawton, JJ.