Opinion
2012-06-15
Gina M. CHIAPPONE, individually and as Natural Guardian and Guardian of the Property of Brittney A. Chiappone, Vincent M. Chiappone, Giovanni J. Chiappone, Mariana M. Chiappone and Michael T. Chiappone, Plaintiff–Appellant, v. WILLIAM PENN LIFE INSURANCE COMPANY OF NEW YORK, Defendant–Respondent, et al., Defendant.
Roscetti & Decastro, P.C., Niagara Falls (James C. Roscetti of Counsel), for Plaintiff–Appellant. Bleakley Platt & Schmidt, LLP, White Plains (Robert D. Meade of Counsel), for Defendant–Respondent.
Roscetti & Decastro, P.C., Niagara Falls (James C. Roscetti of Counsel), for Plaintiff–Appellant. Bleakley Platt & Schmidt, LLP, White Plains (Robert D. Meade of Counsel), for Defendant–Respondent.
PRESENT: SCUDDER, P.J., SMITH, FAHEY, LINDLEY, AND MARTOCHE, JJ.
MEMORANDUM:
Plaintiff appeals from an order that denied her motion for leave to reargue and renew her prior motion for summary judgment on the complaint and her opposition to the cross motion of William Penn Life Insurance Company of New York (defendant) for summary judgment dismissing the complaint. The appeal from the order insofar as it denied that branch of plaintiff's motion seeking leave to reargue must be dismissed because no appeal lies from an order denying leave to reargue ( see Hill v. Milan, 89 A.D.3d 1458, 932 N.Y.S.2d 411). The appeal from the order insofar as it denied that branch of plaintiff's motion seeking leave to renew, however, is properly before us ( see Kirchmeyer v. Subramanian, 167 A.D.2d 851, 561 N.Y.S.2d 957).
We conclude that Supreme Court did not abuse its discretion in denying plaintiff's motion for leave to renew. Plaintiff failed to establish that the purported new evidence was not in existence or not available at the time of the prior motion and cross motion ( seeCPLR 2221[e][2]; Kirby v. Suburban Elec. Engrs. Contrs., Inc., 83 A.D.3d 1380, 1381, 919 N.Y.S.2d 698,lv. dismissed17 N.Y.3d 783, 929 N.Y.S.2d 83, 952 N.E.2d 1078;Patel v. Exxon Corp., 11 A.D.3d 916, 917, 782 N.Y.S.2d 328). Plaintiff further failed to set forth a “reasonable justification for the failure to present such facts on the prior motion [and cross motion]” (CPLR 2221[e] [3]; see Patel, 11 A.D.3d at 917, 782 N.Y.S.2d 328;Robinson v. Consolidated Rail Corp., 8 A.D.3d 1080, 778 N.Y.S.2d 387). Even assuming, arguendo, that plaintiff offered new facts in support of her motion for leave to renew, we conclude that those “new facts not offered on the prior motion [and cross motion] ... would [not] change the prior determination” (CPLR 2221[e][2]; see Garcea v. Battista, 53 A.D.3d 1068, 1070, 863 N.Y.S.2d 311;Cole v. North Am. Adm'rs, Inc., 11 A.D.3d 974, 975, 782 N.Y.S.2d 897).
To the extent that plaintiff advances contentions relating to the prior order denying her motion for summary judgment and granting defendant's cross motion for summary judgment dismissing the complaint, we note that plaintiff's appeal from that order was deemed abandoned and dismissed pursuant to 22 NYCRR 1000.12(b) for failure to perfect it. “[A] prior dismissal for want of prosecution acts as a bar to a subsequent appeal as to all questions that were presented on the earlier appeal” ( Bray v. Cox, 38 N.Y.2d 350, 353, 379 N.Y.S.2d 803, 342 N.E.2d 575;see Alfieri v. Empire Beef Co., Inc., 41 A.D.3d 1313, 836 N.Y.S.2d 456), and we decline to exercise our discretion to review the merits of those contentions ( see Williams v. Williams, 52 A.D.3d 1271, 858 N.Y.S.2d 630;Alfieri, 41 A.D.3d 1313, 836 N.Y.S.2d 456;see generally Faricelli v. TSS Seedman's, 94 N.Y.2d 772, 774, 698 N.Y.S.2d 588, 720 N.E.2d 864;Rubeo v. National Grange Mut. Ins. Co., 93 N.Y.2d 750, 756, 697 N.Y.S.2d 866, 720 N.E.2d 86).
It is hereby ORDERED that said appeal from the order insofar as it denied leave to reargue is unanimously dismissed and the order is otherwise affirmed without costs.