Bhoj v. Bargold Storage Systems, LLC

303 A.D.2d 437, 755 N.Y.S.2d 890

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 10, 2003
• Status: Published

Opinion

—In an action to recover damages for malicious prosecution, false arrest, and intentional infliction of emotional distress, the defendants Bargold Storage Systems, LLC, Vest-pro Management Corporation, Jay Paretsky, and Gerald Goldman appeal from an order of the Supreme Court, Kings County (Barasch, J.), dated March 21, 2002, which denied their motion for leave to renew their prior motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

A motion for leave to renew is based upon new facts which were previously unavailable (see CPLR 2221; Nelson v RPH Constr. Corp., 278 AD2d 465 [2000]; Bulls v Di Lorenzo, 142 AD2d 707 [1988]). The Supreme Court properly denied the appellants’ motion for leave to renew their prior motion for summary judgment. Contrary to the appellants’ contention, the plaintiffs’ deposition testimony did not establish a prima facie showing of entitlement to judgment as a matter of law (see Wlnegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]), and consequently did not constitute “new facts * * * that would change the prior determination” (CPLR 2221 [e]).

The appellants’ remaining contentions are without merit. Feuerstein, J.P., Smith, Cozier and Mastro, JJ., concur.