Nasr v. Schwartz

288 A.D.2d 197, 732 N.Y.S.2d 377, 2001 N.Y. App. Div. LEXIS 10501

Opinion

—In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Queens County (Golia, J.), dated November 17, 2000, which denied their motion denominated as one for leave to renew and reargue the defendants’ prior motion for summary judgment dismissing the complaint on the ground that the plaintiffs did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).

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

The plaintiffs’ motion, denominated as one for leave to renew and reargue the defendants’ prior motion for summary judgment dismissing the complaint, was not based upon new facts which were unavailable at the time they submitted their opposition to the summary judgment motion (see, Doumanis v Conzo, 265 AD2d 296; Bossio v Fiorillo, 222 AD2d 476). In addition, the plaintiffs failed to offer a valid reason as to why the affidavits of their medical experts offered upon their motion were not submitted in opposition to the motion for summary judgment (see, Bossio v Fiorillo, supra). Therefore, their motion is in fact a motion for leave to reargue, the denial of which is not appealable. Bracken, P. J., Krausman, Luciano, Smith and Adams, JJ., concur.