TITTMAN v. Dianne S. Vogt, Appellant.

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

Margaret Ford TITTMAN, Respondent, v. Fred C. RAPPAPORT, et al., Defendants, Dianne S. Vogt, Appellant.

Decided: October 29, 2001

CORNELIUS J. O'BRIEN, J.P., SONDRA MILLER, LEO F. McGINITY, ROBERT W. SCHMIDT and SANDRA L. TOWNES, JJ. Shayne, Dachs, Stanisci, Corker & Sauer, Mineola, N.Y. (Jonathan A. Dachs of counsel), for appellant. Siben & Ferber, LLP, Hauppauge, N.Y. (Leonard G. Kapsalis of counsel), for respondent.

In an action to recover damages for personal injuries, the defendant Dianne S. Vogt appeals from (1) an order of the Supreme Court, Suffolk County (Werner, J.), dated May 31, 2000, which denied her motion for leave to amend her answer, and (2) an order of the same court, dated February 1, 2001, which denied her motion, denominated as one for leave to renew and reargue, but which was, in effect, for leave to reargue the prior motion.

ORDERED that the appeal from the order dated February 1, 2001, is dismissed, as no appeal lies from an order denying leave to reargue;  and it is further,

ORDERED that the order dated May 31, 2000, is reversed, on the law and as a matter of discretion, and the motion is granted;  and it is further,

ORDERED that the appellant's time to serve an amended answer is extended until 30 days after service upon her of a copy of this decision and order with notice of entry;  and it is further,

ORDERED that the appellant is awarded one bill of costs.

 The Supreme Court erred in denying the appellant's motion for leave to amend her answer to deny the allegations in the sixth, seventh, eighth, eleventh, twelfth, thirteenth, fourteenth, fifteenth, and sixteenth paragraphs of the complaint.   The appellant's inadvertent omission of those denials was excusable, and the respondent failed to demonstrate either surprise or prejudice (see, Muro v. Bay Ready Mix & Supplies, 282 A.D.2d 584, 723 N.Y.S.2d 673;  Henderson v. Gulati, 270 A.D.2d 308, 705 N.Y.S.2d 54;  Sidor v. Zuhoski, 257 A.D.2d 564, 683 N.Y.S.2d 590;  Keenan v. Bruce, 34 A.D.2d 648, 310 N.Y.S.2d 677).

 The appellant's subsequent motion, characterized as one for leave to renew and reargue, was not based on new facts which were unavailable to her at the time of her motion for leave to amend her answer.   Therefore, the motion was, in effect, one for leave to reargue, the denial of which is not appealable (see, Muro v. Bay Ready Mix & Supplies, supra;  Privitera v. City of New York, 277 A.D.2d 367, 716 N.Y.S.2d 101).

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