Smith v. Isaac Heating & Air Conditioning, Inc.

265 A.D.2d 821, 696 N.Y.S.2d 737, 1999 N.Y. App. Div. LEXIS 9853

Opinion

—Order and judgment unanimously affirmed without costs. Memorandum: Supreme Court properly granted the motions of Isaac Heating & Air Conditioning, Inc. and Dave Feldman Heating & Cooling, Inc. (defendants) for summary judgment dismissing the complaint. Defendants presented proof in admissible form establishing that dangerous carbon monoxide levels were not present in plaintiffs’ home, and plaintiffs failed to present evidence to raise a triable issue of fact. The affidavit of plaintiffs’ expert engineer is conclusory, and thus the court properly determined that it had no probative force (see, Romano v Stanley, 90 NY2d 444, 451). The court did not abuse its discretion in denying plaintiffs’ motion insofar as it sought renewal because plaintiffs failed to provide a reasonable explanation for failing to present the expanded affidavit of their expert at the time of the original motion (see, Welch Foods v Wilson, 247 AD2d 830, 830-831). To the extent that plaintiffs’ motion sought reargument, the order denying that motion is not appealable (see, Empire Ins. Co. v Food City, 167 AD2d 983, 984). (Appeal from Order and Judgment of Supreme Court, Monroe County, Affronti, J. — Summary Judgment.) Present — Green, J. P., Lawton, Pigott, Jr., Scudder and Balio, JJ.