OMAR HILL PLAINTIFF APPELLANT v. LILLIE MILAN DEFENDANT RESPONDENT (2011)

MEMORANDUM AND ORDER

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.

Memorandum:  Plaintiff commenced this action seeking damages for injuries he allegedly sustained when he was struck by a vehicle owned by defendant.   Plaintiff appeals from an order that denied his motion seeking, inter alia, leave to renew or reargue his prior motion insofar as it sought to extend his time to appear for an independent medical examination (IME).   We conclude at the outset that the appeal from the order insofar as it denied that part of plaintiff's motion seeking leave to renew or reargue must be dismissed.   In support of that part of the motion seeking leave to renew, plaintiff failed to offer new facts that were unavailable at the time of his prior motion.   Thus, that part of plaintiff's motion purportedly seeking leave to renew was actually seeking leave to reargue, and no appeal lies from an order denying leave to reargue (see Matter of Wayne T.I. v. Latisha T.C., 48 AD3d 1165;  Schaner v. Mercy Hosp. of Buffalo, 16 AD3d 1095, 1096).

Contrary to the contention of plaintiff, Supreme Court properly denied that part of his motion seeking to vacate a conditional order dismissing the complaint based on his failure to appear and submit to an IME at a specified date and time (see generally CPLR 5015[a][1];  Lauer v. City of Buffalo, 53 AD3d 213, 215–216).   Plaintiff failed to establish a reasonable excuse for his failure to appear at the IME and a potentially meritorious cause of action (see Castle v. Avanti, Ltd., 86 AD3d 531;  Testa v. Koerner Ford of Syracuse, 261 A.D.2d 866, 868).

Patricia L. Morgan

Clerk of the Court