Opinion
2002-01641
Argued February 11, 2003.
March 3, 2003.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Queens County (Hart, J.), dated January 15, 2002, which denied their motion, in effect, for leave to reargue the defendants' prior cross motion for summary judgment dismissing the complaint, which was granted by order of the same court (Berke, J.), dated June 4, 2001.
Argyropoulos Bender (Michael S. Bender and Paul F. McAloon, P.C., New York, N.Y., of counsel), for appellants.
Callan, Koster, Brady Brennan, LLP (Mischel, Neuman Horn, P.C., New York, N.Y. [Scott T. Horn and Warren S. Koster] of counsel), for respondents.
Before: A. GAIL PRUDENTI, P.J., GABRIEL M. KRAUSMAN, GLORIA GOLDSTEIN, ROBERT W. SCHMIDT, JJ.
DECISION ORDER
ORDERED that the appeal is dismissed, with costs.
The defendants' cross motion for summary judgment dismissing the complaint was previously granted by order of the Supreme Court, Queens County, dated June 4, 2001, and that order was affirmed by decision and order of this court dated August 12, 2002 (Misirlakis v. East Coast Entertainment Props., 297 A.D.2d 312).
The instant appeal is from an order dated January 15, 2002, denying the plaintiffs' motion for leave "to renew" and "to reargue" the defendants' cross motion for summary judgment dismissing the complaint. The plaintiffs' motion was not based upon facts which were unavailable at the time they opposed the defendants' cross motion (see Muro v. Bay Ready Mix Supplies, 282 A.D.2d 584; Bossio v. Fiorillo, 222 A.D.2d 476, 477; CPLR 2221[e]). The allegedly new facts relate to the issue of proximate cause, which was raised on the defendants' original cross motion for summary judgment. The plaintiff did not assert a reasonable excuse for failing to raise these facts in opposition to the original cross motion (see Holmes v. Hansen, 286 A.D.2d 750, 751-752; CPLR 2221[e][3]).
In view of the foregoing, the plaintiffs' motion for leave "to renew" and "to reargue" was simply a motion for leave to reargue, the denial of which is not appealable (see Muro v. Bay Ready Mix Supplies, supra; Bossio v. Fiorillo, supra).
PRUDENTI, P.J., KRAUSMAN, GOLDSTEIN and SCHMIDT, JJ., concur.