King v. Rockaway One Co.

202 A.D.2d 395, 608 N.Y.S.2d 523, 1994 N.Y. App. Div. LEXIS 1931

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 7, 1994
• Status: Published

Opinion

—In a negligence action to recover damages for personal injuries, the defendant Rockaway One Company appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Lane, J.), entered January 7, 1992, as denied its motion, denominated a motion to renew a prior motion for summary judgment dismissing the complaint, but which was, in actuality, a motion for reargument.

Ordered that the appeal is dismissed, without costs or disbursements.

The defendant failed to offer a valid excuse for not submitting the additional fact upon which the motion was based to the court on its initial motion (see, Foley v Roche, 68 AD2d 558, 568). Therefore, the motion should properly be denominated as one for reargument, the denial of which is not appealable (see, Thrift Assns. Serv. Corp. v Legend of Irvington Joint Venture, 152 AD2d 666, 668). In any event, the fact upon which the defendant relied was not material to the ground upon which the Supreme Court based its denial of the motion for summary judgment (see, Frascatore v Mione, 97 AD2d 809; Foley v Roche, supra). Bracken, J. P., Joy, Hart and Friedmann, JJ., concur.