ALOI v. SILIPO WELDING INC (2002)

In an action to recover damages for personal injuries, the plaintiff appeals from (1) an order of the Supreme Court, Queens County (Kitzes, J.), dated April 10, 2001, which granted the defendants' motion for summary judgment dismissing the complaint on the ground that he did not sustain a serious injury within the meaning of Insurance Law § 5102(d), and (2) an order of the same court dated June 15, 2001, which denied his motion, denominated as one for reargument and renewal, but which was, in effect, for reargument.

ORDERED that the appeal from the order dated June 15, 2001, is dismissed;  and it is further,

ORDERED that the order dated April 10, 2001, is reversed, on the law, the motion is denied, and the complaint is reinstated;  and it is further,

ORDERED that the plaintiff is awarded one bill of costs.

 In opposition to the defendants' prima facie showing of entitlement to judgment as a matter of law, the plaintiff raised a triable issue of fact as to whether he sustained a serious injury within the meaning of Insurance Law § 5102(d) (cf.  Wilner v. Gauthier, 264 A.D.2d 732, 694 N.Y.S.2d 754;  McKinney v. Corby, 261 A.D.2d 454, 687 N.Y.S.2d 304).

 The plaintiff's subsequent motion, characterized as one for reargument and renewal, was not based on new facts which were unavailable to him at the time that he opposed the defendants' motion for summary judgment.   Therefore, the motion was, in effect, one to reargue, the denial of which is not appealable (see Muro v. Bay Ready Mix & Supplies, 282 A.D.2d 584, 723 N.Y.S.2d 673;  Privitera v. City of New York, 277 A.D.2d 367, 716 N.Y.S.2d 101;  Nisnewitz v. Renna, 273 A.D.2d 210, 709 N.Y.S.2d 435).