Opinion
October 21, 1996.
In an action to recover damages for personal injuries, the defendants Macias Bolivar and Stem Cab Corp. appeal from an order of the Supreme Court, Queens County (Polizzi, J.), dated September 18, 1995, which denied that branch of their motion which was denominated as one for renewal and reargument of their motion to dismiss the complaint, and, in effect, denied that branch of their motion which was for leave to serve an amended answer.
Before: Miller, J.P., Ritter, Sullivan, Friedmann and Krausman, JJ.
Ordered that the appeal from so much of the order as denied that branch of the motion which was denominated as one for renewal and reargument is dismissed; and it is further,
Ordered that the order is affirmed insofar as reviewed; and it is further,
Ordered that the plaintiff is awarded one bill of costs.
The denial of that branch of the motion of the defendants Macias Bolivar and Stem Cab Corp., characterized as one for renewal and reargument of their motion to dismiss the complaint, is not appealable because it was not based upon new facts which were unavailable at the time they submitted their motion to dismiss the complaint, and it is therefore actually a motion to reargue ( see, e.g., Mgrditchian v Donato, 141 AD2d 513; Matter of Bosco, 141 AD2d 639; Chiarella v Quitoni, 178 AD2d 502).
In addition, while leave to amend an answer should be freely granted, leave may be denied where there is prejudice to the opposing party ( see, Hickey v Hutton, 182 AD2d 801; DeGradi v Coney Is. Med. Group, 172 AD2d 582). Here, the defendants Macias Bolivar and Stem Cab Corp. unduly delayed in seeking leave to amend their answer to include the Statute of Limitations defense, which caused prejudice to the plaintiff. Accordingly, that branch of the motion which was for leave to amend their answer was properly denied.