NAVARETTE v. ALEXIADES (2008)

In an action, inter alia, to recover damages for medical malpractice and lack of informed consent, the plaintiff appeals from an order of the Supreme Court, Queens County (Dollard, J.), entered June 20, 2006, which denied that branch of his motion, denominated as one for leave to renew and reargue, but which was, in actuality, one for leave to reargue his opposition to the prior motion of the defendant Michael Alexiades, and the separate motion of the defendants Barry Waldman, Gary S. Shapiro, and Hospital for Special Surgery to preclude his experts from testifying at the trial on the ground that he failed to timely provide expert witness disclosure pursuant to CPLR 3101(d), which was granted, in part, by an order of the same court entered February 21, 2006, and that branch of his motion, denominated as one for leave to reargue and renew, but which was, in actuality, one for leave to reargue his prior motion for leave to amend his bill of particulars, which was denied by an order of the same court, also entered February 21, 2006.

ORDERED that the appeal is dismissed, with one bill of costs to the respondents.

The plaintiff's motion, which was denominated as for one for leave to renew and reargue, was not based on new facts (see CPLR 2221[e];  Trahan v. Galea, 48 A.D.3d 791, 853 N.Y.S.2d 121).   Therefore, the motion, denominated as one for leave to renew and reargue, was, in actuality, one for leave to reargue, the denial of which is not appealable (see Trahan v. Galea, 48 A.D.3d 791, 853 N.Y.S.2d 121;  Eight In One Pet Prods. v. Janco Press, Inc., 37 A.D.3d 402, 828 N.Y.S.2d 899).