Fucci v. Town of Oyster Bay

Appellate Division of the Supreme Court of New York

Fucci v. Town of Oyster Bay

170 A.D.2d 646, 567 N.Y.S.2d 69, 1991 N.Y. App. Div. LEXIS 3180

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 25, 1991

StatusPublished

Cited by4 cases

This text of 170 A.D.2d 646 (Fucci v. Town of Oyster Bay) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Fucci v. Town of Oyster Bay, 170 A.D.2d 646, 567 N.Y.S.2d 69, 1991 N.Y. App. Div. LEXIS 3180 (N.Y. Ct. App. 1991).

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Opinion

In an action to recover damages for personal injuries, the defendant appeals .from (1) an order of the Supreme Court, Nassau County (Murphy, J.), dated December 21, 1988, which deemed the plaintiff’s motion for reargument of the defendant’s prior motion for summary judgment dismissing the complaint as one for renewal and, upon renewal, vacated a prior order of the same court dated June 28, 1988, granting the defendant’s motion for summary judgment, denied the defendant’s motion and reinstated the complaint, and (2) so much of an order of the same court, dated June 5, 1989, as, upon reargument, adhered to its prior determination.

Ordered that the appeal from the order dated December 21, 1988, is dismissed, without costs or disbursements, as that order was superseded by the order dated June 5, 1989, made upon reargument; and it is further,

Ordered that the order dated June 5, 1989, is reversed insofar as appealed from, on the law and as a matter of discretion, without costs or disbursements, the order dated December 21, 1988, is vacated, and the defendant’s motion for reargument, which the Supreme Court deemed a motion for renewal, is denied, and the order dated June 28, 1988, grant[647]*647ing summary judgment dismissing the complaint, is reinstated.

By an order dated June 28, 1988, which is not the subject of this appeal, the Supreme Court granted the defendant’s motion for summary judgment and dismissed the complaint. We agree with the defendant’s contention that the court erred in granting the plaintiffs subsequent motion for reargument. In light of the plaintiffs failure to present any new facts, that motion was, in fact, a motion for reargument and should not have been treated as a motion for renewal (see, DeFreitas v Board of Educ., 129 AD2d 672). As a motion for reargument, it was untimely brought (see, Foley v Roche, 68 AD2d 558; Siegel, NY Prac § 254). In any event, the plaintiff failed to demonstrate that the court overlooked any relevant facts, or misapplied any controlling principles of law. Mangano, P. J., Brown, Sullivan, Harwood and Miller, JJ., concur.

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In an action to recover damages for personal injuries, the defendant appeals .from (1) an order of the Supreme Court, Nassau County (Murphy, J.), dated December 21, 1988, which deemed the plaintiff’s motion for reargument of the defendant’s prior motion for summary judgment dismissing the complaint as one for renewal and, upon renewal, vacated a prior order of the same court dated June 28, 1988, granting the defendant’s motion for summary judgment, denied the defendant’s motion and reinstated the complaint, and (2) so much of an order of the same court, dated June 5, 1989, as, upon reargument, adhered to its prior determination.

Ordered that the appeal from the order dated December 21, 1988, is dismissed, without costs or disbursements, as that order was superseded by the order dated June 5, 1989, made upon reargument; and it is further,

Ordered that the order dated June 5, 1989, is reversed insofar as appealed from, on the law and as a matter of discretion, without costs or disbursements, the order dated December 21, 1988, is vacated, and the defendant’s motion for reargument, which the Supreme Court deemed a motion for renewal, is denied, and the order dated June 28, 1988, grant[647]*647ing summary judgment dismissing the complaint, is reinstated.

By an order dated June 28, 1988, which is not the subject of this appeal, the Supreme Court granted the defendant’s motion for summary judgment and dismissed the complaint. We agree with the defendant’s contention that the court erred in granting the plaintiffs subsequent motion for reargument. In light of the plaintiffs failure to present any new facts, that motion was, in fact, a motion for reargument and should not have been treated as a motion for renewal (see, DeFreitas v Board of Educ., 129 AD2d 672). As a motion for reargument, it was untimely brought (see, Foley v Roche, 68 AD2d 558; Siegel, NY Prac § 254). In any event, the plaintiff failed to demonstrate that the court overlooked any relevant facts, or misapplied any controlling principles of law. Mangano, P. J., Brown, Sullivan, Harwood and Miller, JJ., concur.

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Bluebook (online)

170 A.D.2d 646, 567 N.Y.S.2d 69, 1991 N.Y. App. Div. LEXIS 3180, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fucci-v-town-of-oyster-bay-nyappdiv-1991.

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