Lersch v. Pachinger

99 A.D.2d 527, 471 N.Y.S.2d 308, 1984 N.Y. App. Div. LEXIS 16740

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 23, 1984
• Status: Published

Opinion

In an action to recover on promissory notes and upon a dishonored check, defendants appeal from an order of the Supreme Court, Westchester County (Ferraro, J.), entered October 4, 1982, which denied their motion for renewal of a prior order of the same court, entered July 16, 1982, which granted plaintiff’s motion for summary judgment. Order reversed, with costs, motion for renewal granted and, upon renewal, order entered July 16, 1982 vacated, and plaintiff’s motion for summary judgment denied. Defendants have established that their motion, denominated as one to reargue, was misdesignated and that Special Term should have treated it as one to renew based upon newly discovered evidence (see Estrow v Wilson, 30 AD2d 646; Matter of Onondaga County Dist. Attorney’s Off., 92 AD2d 32, 35; cf. Roberts v Connelly, 35 AB2d 813). The motion should have been granted and, thereupon, the previous order granting plaintiff’s motion for summary judgment should have been vacated and plaintiff’s motion denied. Defendants’ newly discovered evidence, a check which they allege indicated repayment of one of the promissory notes sued upon,-established a genuine triable issue of fact which mandates the denial of summary judgment (see Barrett u Jacobs, 255 NY 520; Di Sabato v Soffes, 9 AD2d 297, 300; Horvath v 305 Park Club Lane, 37 AD2d 907). Titone, J. P., Gibbons, Thompson and Boyers, JJ., concur.