Huttner v. McDaid

151 A.D.2d 547, 543 N.Y.S.2d 916, 1989 N.Y. App. Div. LEXIS 16752

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 12, 1989
• Status: Published

Opinion

In an action to recover damages for personal injuries, the defendant third-party plaintiff appeals from an order of the Supreme Court, Richmond County (Cusick, J.), dated November 5, 1987, which denied its motion, denominated as a motion for leave to reargue and renew the grant of the third-party defendant’s prior motion for summary judgment dismissing the third-party complaint.

Ordered that the appeal is dismissed, with costs.

The appellant’s motion, characterized as one for renewal and reargument, was not based upon new facts which were unavailable at the time of the original motion and is therefore actually a motion to reargue, the denial of which is not appealable (see, e.g., Mgrditchian v Donato, 141 AD2d 513; Matter of Bosco, 141 AD2d 639; Matter of Radish v Colombo, 121 AD2d 722). Even if the motion were deemed one for renewal, it was properly denied as the defendant has not offered a reasonable excuse for its failure to produce the evidence at the time of the original motion (see, Matter of Bosco, 141 AD2d 639, supra; Caffee v Arnold, 104 AD2d 352). Mangano, J. P., Thompson, Sullivan and Balletta, JJ., concur.