Fisher v. Ives

—Appeal unanimously dismissed without costs. Memorandum: Plaintiff commenced this action to recover for injuries she allegedly sustained in an automobile accident. Defendant moved for summary judgment dismissing the complaint on the ground that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d). Supreme Court determined that the parties’ submissions were insufficient to resolve that issue. The court therefore ordered that the motion be adjourned for 12 weeks and directed the parties to conduct further discovery and submit appropriate evidence on the issue whether plaintiff sustained a serious injury in the accident. Defendant appeals from that order. The appeal is dismissed. Inasmuch as the court adjourned the motion and effectively reserved decision until the adjourned date, the order is not appealable (see, Barr v Country Motor Car Group, 221 AD2d 1003, lv dismissed 88 NY2d 919; Cobb v Kittinger, 168 AD2d 923). Alternatively, if the order is construed as denying the motion with leave to renew upon a proper showing, it remains nonappealable (see, Marasco v Kaplan, 177 AD2d 933, 934; Walden v Nowinski, 63 AD2d 586; 10 Carmody-Wait 2d, NY Prac § 70:25, at 43). In that case, defendant’s remedy is not to appeal but to renew the motion “supported by the necessary and proper papers found to be lacking upon the original application” (Walden v Nowinski, supra, at 587; see, Marasco v Kaplan, supra, at 934). (Appeal from Order of Supreme Court, Jefferson County, Gilbert, J.— Summary Judgment.) Present — Denman, P. J., Green, Pigott, Jr., Balio and Boehm, JJ.