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Sanchez v. 1710 Broadway, Inc.

Supreme Court of New York, Second Department

February 13, 2014

Julio Sanchez, appellant,
v.
1710 Broadway, Inc., defendant, Unite Health Center, Inc., defendant third-party plaintiff-respondent; Koslowitz Construction, Inc., etc., third-party defendant- respondent, et al., third-party defendant. Index No. 24312/06

Friedman Friedman Chiaravollati & Giannini (Pollack, Pollack, Isaac & De Cicco, New York, N.Y. [Brian J. Isaac], of counsel), for appellant.

Patrick F. Adams, P.C., Great River, N.Y. (Charles J. Adams and Steven A. Levy of counsel), for defendant third-party plaintiff- respondent.

Hammill, O'Brien, Croutier, Dempsey, Pender & Koehler, P.C., Syosset, N.Y. (Anton Piotroski of counsel), for third-party defendant- respondent.

WILLIAM F. MASTRO, J.P., LEONARD B. AUSTIN, SANDRA L. SGROI, ROBERT J. MILLER, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Schmidt, J.), dated December 23, 2011, which denied his motion for leave to renew and reargue that branch of his prior motion which was pursuant to CPLR 3126 to strike the answer of the defendant Unite Health Center, Inc., or, in the alternative, to direct a finding of liability against the defendant Unite Health Center, Inc., which had been denied as academic in an order of the same court dated June 12, 2009.

ORDERED that the appeal from so much of the order dated December 23, 2011, as denied that branch of the plaintiff's motion which was for leave to reargue is dismissed, as no appeal lies from an order denying reargument; and it is further,

ORDERED that the order dated December 23, 2011, is affirmed insofar as reviewed; and it is further,

ORDERED that one bill of costs is awarded to the respondents.

A motion for renewal "shall be based upon new facts not offered on the prior motion that would change the prior determination" (CPLR 2221[e][2]). "Whether to grant leave to renew is within the sound discretion of the motion court" (Biscone v JetBlue Airways Corp., 103 A.D.3d 158, 180; see HSBC Bank USA, N.A. v Halls, 98 A.D.3d 718, 720). Under the circumstances presented here, the Supreme Court providently exercised its discretion in denying that branch of the plaintiff's motion which was for leave to renew.

MASTRO, J.P., AUSTIN, SGROI and MILLER, JJ., concur.


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