CARYL v. CHILD ADOLESCENT TREATMENT SERVICES INC CSW CSW

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Supreme Court, Appellate Division, Fourth Department, New York.

CARYL S. and Wallace S., Respondents, v. CHILD & ADOLESCENT TREATMENT SERVICES, INC., Patricia Jones, CSW, and Jen Henry, CSW, Appellants.

Decided: April 25, 1997

Before GREEN, J.P., and PINE, LAWTON, DOERR and FALLON, JJ. Davis, Augello, Matteliano & Gersten, LLP by Joseph Matteliano, Buffalo, for Appellants. Birzon & Zakia, P.C. by Paul Birzon, Buffalo, for Respondents.

 In May 1994 Supreme Court denied defendants' motion to dismiss the complaint for failure to state a cause of action (Caryl S. v. Child & Adolescent Treatment Servs., 161 Misc.2d 563, 614 N.Y.S.2d 661).   Two years later, defendants moved for renewal on the ground that one of the cases cited in the court's decision, W.C.W. v. Bird, 840 S.W.2d 50 (Ct. App. Tex.), had been reversed on appeal (Bird v. W.C.W., 868 S.W.2d 767 [Tex.1994] ).  The court properly exercised its discretion in denying the motion.   Although a motion to renew may be “based upon law not previously considered” (Johnston v. National R.R. Passenger Corp. [Amtrak], 161 A.D.2d 288, 289, 555 N.Y.S.2d 62;  see, Olean Urban Renewal Agency v. Herman, 101 A.D.2d 712, 475 N.Y.S.2d 955), the Bird case was neither controlling nor essential to the court's denial of the motion to dismiss (cf., Olean Urban Renewal Agency v. Herman, supra ).

Order unanimously affirmed with costs.

MEMORANDUM: