Opinion
September 16, 1982
Appeal from an order of the Supreme Court at Special Term (Dier, J.), entered October 19, 1981 in Clinton County, which granted defendant Bert Miller's motion to reargue a prior motion for summary judgment decided in favor of plaintiff and which further denied plaintiff's original motion for summary judgment against defendant Bert Miller individually. Plaintiff commenced an action against defendant Bert Miller individually and Bersan Enterprises, Inc., doing business as Miller Electric, to recover money owing for electrical supplies purchased from plaintiff. A dispute arose as to whether Bert Miller was individually liable for the purchases. This question was resolved in favor of plaintiff on a motion for summary judgment and Special Term granted judgment against all defendants by decision dated July 1, 1981. On July 27, 1981, defendant Bert Miller moved for reargument of the original motion. Special Term granted this motion and then denied summary judgment in favor of Bert Miller individually. This appeal by plaintiff ensued. There should be a reversal. The motion for reargument was in fact a motion to renew since it was supported by defendant Bert Miller's affidavit setting forth new facts and evidence which was available at the time the original motion was argued. However, no explanation was presented of why the facts supplied on the motion to renew were not presented on the earlier motion as is required ( Foley v Roche, 68 A.D.2d 558, 568; Matter of Hooker v Town Bd. of Town of Guilderland, 60 A.D.2d 684; Ecco High Frequency Corp. v Amtorg Trading Corp., 274 App. Div. 982, affg 81 N.Y.S.2d 897). Accordingly, the order granting reargument and denying the motion for summary judgment against defendant Bert Miller individually should be reversed, and the original order granting summary judgment against all defendants reinstated. Order reversed, on the law and the facts, with costs, motion by defendant Bert Miller denied, and original order granting summary judgment against all defendants reinstated. Sweeney, J.P., Main, Mikoll, Yesawich, Jr., and Levine, JJ., concur.