Yohay v. Papaleo

273 A.D.2d 465, 711 N.Y.S.2d 746, 2000 N.Y. App. Div. LEXIS 7418

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 26, 2000
• Status: Published

Opinion

In an action, inter alia, to recover damages for fraud, the defendant appeals from (1) an order of the Supreme Court, Nassau County (Franco, J.), dated October 5, 1999, which denied his motion pursuant to CPLR 3216 to dismiss the complaint for failure to prosecute, and (2) an order of the same court, dated November 8, 1999, which denied his motion, in effect, for renewal.

Ordered that the order dated November 8, 1999, is reversed, on the law, the defendant’s motion, in effect, for renewal, is granted, and, upon renewal, the motion is granted, the order dated October 5, 1999, is vacated, and the complaint is dismissed; and it is further,

Ordered that the appeal from the order dated October 5, 1999, is dismissed in light of our determination of the appeal from the order dated November 8, 1999; and it is further,

Ordered that the defendant is awarded one bill of costs.

The Supreme Court erred in denying the defendant’s motion, in effect, for renewal of his earlier motion to dismiss, as the motion was supported by additional facts which, although in existence at the time of the original motion, were not known to him (see, Palmer v Toledo, 266 AD2d 268; Matter of Brooklyn Welding Corp. v Chin, 236 AD2d 392).

Upon renewal, the Supreme Court should have vacated its earlier order and granted the defendant’s motion pursuant to CPLR 3216 to dismiss the complaint for failure to prosecute (see, Spungin v Spungin, 124 AD2d 690; Moustakas v Bouloukos, 112 AD2d 981). Ritter, J. P., Sullivan, S. Miller, Luciano and H. Miller, JJ., concur.