Opinion
February 25, 1991
Appeal from the Supreme Court, Nassau County (Murphy, J.).
Ordered that the appeal from the order dated December 21, 1988, is dismissed, without costs or disbursements, as that order was superseded by the order dated June 5, 1989, made upon reargument; and it is further,
Ordered that the order dated June 5, 1989, is reversed insofar as appealed from, on the law and as a matter of discretion, without costs or disbursements, the order dated December 21, 1988, is vacated, and the defendant's motion for reargument, which the Supreme Court deemed a motion for renewal, is denied, and the order dated June 28, 1988, granting summary judgment dismissing the complaint, is reinstated.
By an order dated June 28, 1988, which is not the subject of this appeal, the Supreme Court granted the defendant's motion for summary judgment and dismissed the complaint. We agree with the defendant's contention that the court erred in granting the plaintiff's subsequent motion for reargument. In light of the plaintiff's failure to present any new facts, that motion was, in fact, a motion for reargument and should not have been treated as a motion for renewal (see, DeFreitas v Board of Educ., 129 A.D.2d 672). As a motion for reargument, it was untimely brought (see, Foley v Roche, 68 A.D.2d 558; Siegel, N Y Prac § 254). In any event, the plaintiff failed to demonstrate that the court overlooked any relevant facts, or misapplied any controlling principles of law. Mangano, P.J., Brown, Sullivan, Harwood and Miller, JJ., concur.