Margino v. Avasso

250 A.D.2d 652, 671 N.Y.S.2d 693, 1998 N.Y. App. Div. LEXIS 5501

Opinion

—In an action for summary judgment in lieu of complaint pursuant to CPLR 3213 to recover on a promissory note, the plaintiff appeals from an order of the Supreme Court, Nassau County (Bucaria, J.), dated March 20, 1997, which granted the defendant’s motion for renewal, and upon renewal, denied the plaintiff’s motion for summary judgment in lieu of complaint, and dismissed the action pursuant to CPLR 3211 (a) (5).

Ordered that the order is affirmed, with costs.

Although a motion for leave to renew is generally based upon the discovery of material facts that were unknown to the movant at the time of the original motion, it is well settled that the requirement is a flexible one, and a court, in its discretion, may grant renewal upon facts known to the moving party at the time of the original motion (see, Matter of Liberty Mut. Ins. Co. v Driscoll, 213 AD2d 646; Patterson v Town of Hempstead, 104 AD2d 975). Under the circumstances of this case, the Supreme Court did not improvidently exercise its discretion in granting the defendant’s motion to renew.

In addition, we agree with the Supreme Court that the general release submitted by the defendant upon the renewal motion was intended to release him from the promissory note at issue. Thus, the Supreme Court properly dismissed the action (see, CPLR 3211 [a] [5]). O’Brien, J. P., Ritter, Thompson, Friedmann and Goldstein, JJ., concur.