Salgado v. Ring

21 A.D.3d 363, 798 N.Y.S.2d 918

Opinion

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Golar, J.), dated April 7, 2004, which denied her motion, denominated as one for leave to reargue and renew, but which was, in effect, for leave to reargue the defendants’ prior motion for summary judgment.

Ordered that the appeal is dismissed, with costs.

The plaintiff’s motion, denominated as one for leave to reargue and renew, was based upon evidence which could have been discovered earlier with due diligence. Since the plaintiff failed to proffer a reasonable excuse for her failure to present such evidence on the prior motion, the Supreme Court properly deemed it a motion for leave to reargue, the denial of which is not appealable (see EMC Mtge. Corp. v Stewart, 2 AD3d 772 [2003]; Reyes v Ross, 289 AD2d 554 [2001]). Adams, J.P., Krausman, Spolzino and Fisher, JJ., concur.