Ordered that the appeal from the order dated February 7, 2006 is dismissed, as no appeal lies from an order denying reargument; and it is further,
Ordered that the order dated November 28, 2005 is affirmed insofar as appealed from; and it is further,
Ordered that one bill of costs is awarded to the respondent.
The plaintiff's motion, denominated as one for "renewal and/or reargument," was not based on new facts which were unavailable at the time of the original cross motion. The plaintiff merely submitted evidence as to the admissibility of a deposition transcript that it submitted on its prior cross motion. Moreover, the plaintiff failed to offer a valid excuse for its failure to present this evidence earlier. Therefore, the motion was, in effect, one for leave to reargue, the denial of which is not appealable ( see Rivera v Toruno, 19 AD3d 473, 474; Koehler v Town of Smithtown, 305 AD2d 550, 551; Sallusti v Jones, 273 AD2d 293).
To establish a cause of action to recover damages for conversion, "the plaintiff must show legal ownership or an immediate superior right of possession to a specific identifiable thing and must show that the defendant exercised an unauthorized dominion over the thing in question . . . to the exclusion of the plaintiffs rights" ( Independence Discount Corp. v Bressner, 47 AD2d 756, 757; see Castaldi v 39 Winfield Assoc., 30 AD3d 458, 458; Estate of Giustino v Estate of DelPizzo, 21 AD3d 523, 523; Batsidis v Batsidis, 9 AD3d 342; Fiorenti v Central Emergency Physicians, 305 AD2d 453, 454-455 [2003]). The plaintiff failed to make a prima facie showing of entitlement to judgment as a matter of law by eliminating any triable issue of fact with respect to its conversion cause of action ( see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). Since the plaintiff failed to submit proof sufficient to establish its entitlement to judgment as a matter of law, the sufficiency of the defendant's opposition papers is irrelevant ( see Winegrad v New York Univ. Med. Ctr., 64 NY2d at 853).