Roberts v. Narcissus Boutique, Ltd.

72 A.D.2d 808, 421 N.Y.S.2d 917, 1979 N.Y. App. Div. LEXIS 14080

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 26, 1979
• Status: Published

Opinion

In a consolidated action, inter alia, for declaratory and injunctive relief, the defendant appeals, as limited by its brief, from stated portions of (1) an order and judgment (one paper) of the Supreme Court, Queens County, entered April 28, 1978 which, inter alia, granted plaintiffs’ motion for summary judgment and dismissed the defendant’s counterclaim and (2) an order of the same court, dated September 18, 1978, which, inter alia, in part denied the defendant’s motion which was denominated as one to reargue but was in fact a motion to renew. Order and judgment entered April 28, 1978 and order dated September 18, 1978, reversed insofar as appealed from, defendant’s motion for renewal granted, and, upon renewal, the plaintiffs’ motion for summary judgment is denied and the defendant’s counterclaim is reinstated. The appellant is awarded one bill of $50 costs and disbursements to cover both appeals. The presentation of an additional factual affidavit on the motion for "reargument” sufficed to make it a motion for renewal and an appeal lies from the denial of a motion to renew (see Seabrook Realty Corp. v 139 W. Mut. Assoc., 60 AD2d 821; 2A Weinstein-Korn-Miller, NY Civ Prac, par 2221.03; vol 7, par 5701.24). In view of the triable issues of fact raised on the motion to renew, Special Term should have granted renewal, and upon renewal denied plaintiffs’ motion for summary judgment and reinstated the defendant’s counterclaim. Rabin, J. P., Cohalan, Hargett and Gibbons, JJ., concur.