Elbaz v. New York City Housing Authority

90 A.D.3d 986, 935 N.Y.2d 333

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 27, 2011
• Status: Published

Opinion

The plaintiff moved for leave to renew and reargue her opposition to the defendant’s motion, contending, inter alia, that the defendant’s motion was premature because discovery was incomplete. In the order appealed from, the Supreme Court granted the plaintiff’s motion, vacated its prior order, and denied the defendant’s motion for summary judgment as premature, finding that “a great amount of discovery remain[ed] to be done.”

The Supreme Court should have denied that branch of the plaintiffs motion which was for leave to renew, as the motion was not based upon new facts or a change in the law (see CPLR 2221 [e] [2]). However, the court providently exercised its discretion in granting that branch of the motion which was for leave to reargue (see CPLR 2221 [d]; Weiss v Fire Extinguisher Servs. Co., Inc., 83 AD3d 822, 823 [2011]; Smith v City of New York, 38 AD3d 641, 643 [2007]). Upon granting reargument, under the circumstances presented here, the court properly denied, as premature, with leave to renew upon the completion of discovery, the defendant’s motion for summary judgment dismissing the complaint (see CPLR 3212 [f|; Lettieri v Cushing, 80 AD3d 574, 576 [2011]; Botros v Flamm, 77 AD3d 602, 603 [2010]; Smith v City of New York, 38 AD3d at 644). Skelos, J.P, Belen, Lott and Cohen, JJ, concur.