Andil v. Wakefern Food Corp.

Andil v Wakefern Food Corp. (2023 NY Slip Op 05582) Andil v Wakefern Food Corp. 2023 NY Slip Op 05582 Decided on November 8, 2023 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided on November 8, 2023 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department COLLEEN D. DUFFY, J.P. FRANCESCA E. CONNOLLY LINDA CHRISTOPHER BARRY E. WARHIT, JJ. 2021-08597 (Index No. 54876/19) [*1]Diaa Andil, appellant, v Wakefern Food Corp., et al., respondents. Mainetti & Mainetta, PC (John T. Casey, Jr., Troy, NY, of counsel), for appellant. Alan R. Lewis, Newburgh, NY, for respondents. In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Dutchess County (Maria G. Rosa, J.), dated October 18, 2021. The order denied the plaintiff's motion for leave to reargue and renew his opposition to the defendants' motion for summary judgment dismissing the complaint, which was granted in an order of the same court dated August 24, 2021. DECISION & ORDER Motion by the defendants to dismiss the appeal on the ground that no appeal lies from an order denying reargument. By decision and order on motion of this Court dated June 17, 2022, the motion was held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof. Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the submission of the appeal, it is ORDERED that the motion is granted to the extent that the appeal from so much of the order dated October 18, 2021, as denied that branch of the plaintiff's motion which was for leave to reargue is dismissed, and the defendants' motion is otherwise denied; and it is further, ORDERED that the order dated October 18, 2021, is affirmed insofar as reviewed; and it is further, ORDERED that one bill of costs is awarded to the defendants. The plaintiff commenced this action to recover damages for personal injuries he allegedly sustained when he fell on premises owned by the defendants. The defendants moved for summary judgment dismissing the complaint. In an order dated August 24, 2021, the Supreme Court granted the defendants' motion. The plaintiff subsequently moved for leave to reargue and renew his opposition to the defendants' motion. In an order dated October 18, 2021, the Supreme Court denied the plaintiff's motion. The plaintiff appeals. The appeal from so much of the order dated October 18, 2021, as denied that branch of the plaintiff's motion which was for leave to reargue must be dismissed, as no appeal lies from an order denying reargument (see Doctors for Surgery, PLLC v Aristide, 192 AD3d 991, 992). A motion for leave to renew "shall be based upon new facts not offered on the prior [*2]motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination" (CPLR 2221[e][2]). Here, the Supreme Court properly denied that branch of the plaintiff's motion which was for leave to renew his opposition to the defendants' motion for summary judgment dismissing the complaint, as the plaintiff failed to offer new facts or a change in the law that would change the court's prior determination (see Waterfall Victoria Grantor Trust II, Series G v Philantrope, 211 AD3d 986, 988; Board of Mgrs. of Van Wyck Glen Condominium v Van Wyck at Merritt Park Homeowners Assn., Inc., 211 AD3d 790, 791). DUFFY, J.P., CONNOLLY, CHRISTOPHER and WARHIT, JJ., concur. ENTER: Darrell M. Joseph Acting Clerk of the Court