Opinion
February 17, 2000
Appeal from order, Supreme Court, New York County (Ira Gammerman, J.), entered March 18, 1999, deeming plaintiff's motion to renew and reargue its previously denied motion for summary judgment in lieu of complaint pursuant to CPLR 3213 as one for reargument only and denying it as such, unanimously dismissed, without costs.
Tae Hyun Whang, for Plaintiff-Appellant.
Andrew A. Kimler, for Defendant-Respondent.
ROSENBERGER, J.P., WILLIAMS, ELLERIN, SAXE, JJ.
Plaintiff's motion, although nominally seeking renewal, did not rely on material facts unknown or unavailable to plaintiff at the time of the original motion (see, Foley v. Roche, 68 A.D.2d 558, 568). Indeed, the purportedly new matter, i.e., certain checks, was always available and could have been included on the original motion had plaintiff made sufficient effort to do so. The instant motion, then, was properly deemed one for reargument only and, as such, is not appealable (Charney v. N. Jersey Trading Corp., 184 A.D.2d 409).
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.