Lowensohn v. Bedford Garden Caterers, Inc.

266 A.D.2d 266, 698 N.Y.S.2d 526, 1999 N.Y. App. Div. LEXIS 11311

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 8, 1999
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the plaintiff appeals from (1) an order of the Supreme Court, Kings County (Belen, J.), dated July 27, 1998, which granted the defendant’s motion for summary judgment dismissing the complaint, and (2) an order of the same court, dated March 24, 1999, which denied the plaintiffs motion, in effect, for reargument.

Ordered that the appeal from the order dated March 24, 1999, is dismissed, as no appeal lies from an order denying re-argument; and it is further,

Ordered that the order dated July 27, 1998, is affirmed; and it is further,

Ordered that the respondent is awarded one bill of costs.

The defendant made out a prima facie case for summary judgment, and the plaintiff failed to submit sufficient evidence in admissible form to create an issue of fact as to whether the defendant allowed a dangerous condition to exist on its property (see, Breem v Long Is. Light. Co., 256 AD2d 294; Miller v City of New York, 214 AD2d 657).

Additionally, although the plaintiff denominated her subsequent motion as one to renew, there was no reasonable explanation as to why the alleged new evidence was not submitted to the court in opposition to the original motion (see, Caffee v Arnold, 104 AD2d 352). Accordingly, the motion was in actuality one for reargument, the denial of which is not appealable (see, Vaynshteyn v Cohen, 266 AD2d 280 [decided herewith]). Joy, J. P., Goldstein, McGinity and Feuerstein, JJ., concur.