Silberman v. Kennedy Furniture Outlet

216 A.D.2d 455, 628 N.Y.S.2d 545, 1995 N.Y. App. Div. LEXIS 6494

Opinion

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Kutner, J.), dated March 21,1994, which granted the defendant’s motion for summary judgment dismissing the complaint pursuant to an order of preclusion dated August 24, 1992, and denied the plaintiff’s cross motion, denominated as a cross motion for leave to renew and reargue the defendant’s motion for an order of preclusion, which was in fact a cross motion for reargument.

Ordered that the appeal from so much of the order as denied the cross motion for reargument is dismissed; and it is further,

Ordered that the order is affirmed insofar as reviewed; and it is further,

Ordered that the respondent is awarded one bill of costs.

Under these circumstances, where a Supreme Court order dated August 24, 1992, precluded the plaintiff from offering any evidence at trial, an order granting the defendant summary judgment dismissing the complaint was proper.

The plaintiff’s cross motion must be considered one to reargue rather than one to renew, because the plaintiff presented no new facts which existed at the time of the original motion but which for some reason were not known to him (see, Federal Home Loan Mtge. Corp. v Green, 215 AD2d 433; Caffee v Arnold, 104 AD2d 352). No appeal lies from an order denying a cross motion to reargue (see, Adams v Berkowitz, 212 AD2d 557). Bracken, J. P., Rosenblatt, Krausman and Goldstein, JJ., concur.