Reed v. County of Westchester

243 A.D.2d 714, 664 N.Y.S.2d 567, 1997 N.Y. App. Div. LEXIS 10709

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 27, 1997
• Status: Published

Opinion

In a proceeding pursuant to General Municipal Law § 50-e (5) for leave to serve a late notice of claim, the petitioner appeals from an order of the Supreme Court, Westchester County (Nastasi, J.), entered July 31, 1996, which denied her motion to renew the prior application.

Ordered that the order is affirmed, with costs.

Since there was a final judgment on the merits dismissing this special proceeding, under the circumstances of this case, the petitioner should have moved pursuant to CPLR 5015 and not by way of a motion to renew under CPLR 2221 (see, Matter of Willard v Town Bd., 216 AD2d 861; Able v Able, 209 AD2d 972). In any event, the evidence relied on by the petitioner was not newly discovered, and she did not offer an explanation for her failure to submit that evidence when she made her initial application (see, Matter of Willard v Town Bd., supra). Thus, her motion was properly denied.

The petitioner’s remaining contentions are academic in light of our determination. Miller, J. P., Pizzuto, Altman and Gold-stein, JJ., concur.