White v. City of Poughkeepsie

232 A.D.2d 551, 648 N.Y.S.2d 951, 1996 N.Y. App. Div. LEXIS 10428

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 21, 1996
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the plaintiff Frank W. White appeals from (1) an order of the Supreme Court, Dutchess County (Hillery, J.), dated October 13, 1995, which granted the defendants’ motion for summary judgment dismissing the complaint insofar as asserted by him, and (2) an order of the same court, dated February 21, 1996, which denied his motion denominated as one for renewal but which was, in effect, one for reargument of his prior motion.

Ordered that the order dated October 13, 1995, is reversed, on the law, the motion is denied, and the complaint is reinstated insofar as asserted by the appellant; and it is further,

Ordered that the appeal from the order dated February 21, 1996, is dismissed as no appeal lies from an order denying re-argument; and it is further,

Ordered that the appellant is awarded one bill of costs.

Although the appellant characterized his motion for reconsideration as one for renewal, it was not based upon new facts which were unavailable at the time the original motion was made and, thus, it was actually a motion for reargument, the denial of which is not appealable (see, Paulus v Kuchler, 214 AD2d 608; Huttner v McDaid, 151 AD2d 547).

We find, however, that the Supreme Court improperly granted the defendants’ motion for summary judgment which was to dismiss the complaint insofar as asserted by the appellant, inasmuch as issues of fact were raised in the motion papers. Miller, J. P., Ritter, Krausman and Florio, JJ., concur.