SANTAMARIA v. SCHWARTZ

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

Jeannette SANTAMARIA, et al., Appellants, v. Peter SCHWARTZ, Respondent.

Decided: April 28, 1997

Before PIZZUTO, J.P., and SANTUCCI, JOY and FLORIO, JJ. Gregory Elefterakis, Brooklyn, (Pollack, Pollack, Isaac & DeCicco [Brian J. Isaac] of counsel), for appellants. Santangelo, Benvenuto & Slattery, Manhasset, (James W. Tuffin, of counsel), for respondent.

In an action to recover damages for medical malpractice, etc., the plaintiffs appeal from an order of the Supreme Court, Queens County (Rutledge, J.), dated February 7, 1996, which denied their motion which was, in effect, to reargue a prior application to vacate a judgment of the same court, entered April 29, 1994, which dismissed the complaint based upon the plaintiffs' failure to comply with a conditional order of dismissal.

ORDERED that the appeal is dismissed, without costs or disbursements.

 Contrary to the plaintiffs' contentions, the Supreme Court did not err in treating their motion, denominated as one for renewal, as one for reargument.   The so-called renewal motion was not based upon either new facts or proof which was unavailable when the original motion was made (see, CPLR 2221;  Spa Realty Assocs. v. Springs Assocs., 213 A.D.2d 781, 623 N.Y.S.2d 22;  Price v. Palagonia, 212 A.D.2d 765, 623 N.Y.S.2d 269).  Furthermore, in support of their motion to renew, the plaintiffs argued in part that the court overlooked significant facts and misapplied the law when it denied the prior motion to vacate dismissal of the complaint.   Under these circumstances, the court properly deemed the motion as one for reargument, the denial of which is not appealable (see, Savory v. Romex Realty Corp., 194 A.D.2d 601, 599 N.Y.S.2d 997;  Kean v. Phelps, 186 A.D.2d 368, 588 N.Y.S.2d 774;  300 West Realty Co. v. City of New York, 99 A.D.2d 708, 471 N.Y.S.2d 858).

MEMORANDUM BY THE COURT.

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