Schneider v. Solowey

141 A.D.2d 813, 529 N.Y.S.2d 1017, 1988 N.Y. App. Div. LEXIS 7135

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 27, 1988
• Status: Published

Opinion

In a medical malpractice action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Queens County (Santucci, J.), entered September 25, 1987, which granted the plaintiffs’ motion for reargument of the defendant’s motion for partial summary judgment which was granted in an order of the same court, dated April 27, 1987, and, upon reargument, vacated that order and denied the defendant’s motion.

Ordered that the order is affirmed, with costs.

The granting of a motion for reargument is within the sound discretion of the court which decided the prior motion, provided the movant shows that the court overlooked or misapprehended the facts or the law or for some reason mistakenly arrived at its earlier decision. Under the circumstances the Supreme Court did not abuse its discretion in granting the plaintiffs’ motion for reargument and acted properly in vacating its earlier determination granting partial summary judgment to the defendant. Upon its review of the continuous treatment doctrine as well as the defendant’s own testimony during his deposition as to the relationship between the conditions being treated, it properly concluded that an issue of fact existed as to whether there was a continuous course of treatment, thereby precluding partial summary judgment on the ground of the Statute of Limitations. Mollen, P. J., Lawrence, Weinstein and Balletta, JJ., concur.