Rios v. Reichardt

Appeal from an order, Supreme Court, Bronx County (Hansel McGee, J.), entered on or about October 17, 1990, [397] which denied plaintiffs motion seeking renewal of a prior order, entered on or about February 14, 1990, denying reargument of an October 25, 1989 order of the same court and Justice, which dismissed plaintiffs first complaint, unanimously dismissed as non-appealable. Order of the same court and same Justice, also entered on or about October 17, 1990, which granted the defendants’ motion to dismiss the plaintiff’s second complaint, unanimously affirmed, without costs. The IAS court properly denied plaintiffs renewal motion, seeking to address the merits of an October 25, 1989 order dismissing plaintiffs original complaint. The plaintiffs appeal from that order was dismissed by this Court for failure to prosecute and plaintiffs subsequent motion for reargument thereof was denied. Plaintiff is therefore barred from addressing the merits of the October 25, 1989 order of dismissal on the present appeal and the appeal from the October 17, 1990 order denying renewal is dismissed. (Bray v Cox, 38 NY2d 350.) In any event, we find that the plaintiff failed to substantiate the existence of material facts, to explain the more than three year delay in filing a new Note of Issue in compliance with a January 13, 1986 order of Hon. Herbert Shapiro to warrant renewal (Foley v Roche, 68 AD2d 558, 562). In dismissing plaintiffs second complaint, the IAS court properly determined that the plaintiff was not entitled to recommence the underlying personal injury action pursuant to CPLR 205 where the plaintiffs original complaint had twice before been dismissed for lack of prosecution (Benderson Dev. Co. v Litton Business Sys., 130 AD2d 941, lv denied 70 NY2d 607). We have reviewed the plaintiffs remaining claims, and find them to be without merit. Concur—Murphy, P. J., Wallach, Asch, Kassal and Smith, JJ.