Young v. Augros, Inc.

269 A.D.2d 594, 703 N.Y.S.2d 747, 2000 N.Y. App. Div. LEXIS 2107

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 28, 2000
• Status: Published

Opinion

—In an action to recover damages for breach of an employment contract, the defendant appeals from an order of the Supreme Court, Nassau County (DeMaro, J.), entered December 8, 1998, which granted the plaintiffs cross motion for renewal and, upon renewal, vacated so much of a prior order of the same court dated June 5, 1998, as granted the defendant’s cross motion for summary judgment dismissing the complaint, and denied that cross motion.

Ordered that the order entered December 8, 1998, is modified by deleting the provision thereof vacating stated portions of the order dated June 5, 1998, and denying the defendant’s cross motion for summary judgment dismissing the complaint, and substituting therefor a provision stating that, upon renewal, the original determination is adhered to; as so modified, the order entered December 8, 1998, is affirmed, with costs to the defendant.

The Supreme Court providently exercised its discretion in granting the plaintiffs motion for leave to renew (see, Motts v Cohen, 264 AD2d 764; Gadson v New York City Hous. Auth., 263 AD2d 464). However, upon renewal, the Supreme Court should have adhered to its original determination, since none of the purportedly new evidence raised a triable issue of fact sufficient to defeat the defendant’s motion for summary judgment (see, CPLR 3212 [b]; Gadson v New York City Hous. Auth., supra; cf., Motts v Cohen, supra; Brower v TRW Tit. Ins., 233 AD2d 473). O’Brien, J. P., Joy, Florio and H. Miller, JJ., concur.