Opinion
April 25, 1991
Appeal from the Supreme Court, Bronx County (Hansel McGee, J.).
The IAS court properly denied plaintiff's renewal motion, seeking to address the merits of an October 25, 1989 order dismissing plaintiff's original complaint. The plaintiff's appeal from that order was dismissed by this Court for failure to prosecute and plaintiff's subsequent motion for reargument thereof was denied. Plaintiff is therefore barred from addressing the merits of the October 25, 1989 order of dismissal on the present appeal and the appeal from the October 17, 1990 order denying renewal is dismissed. (Bray v. Cox, 38 N.Y.2d 350.)
In any event, we find that the plaintiff failed to substantiate the existence of material facts, to explain the more than three year delay in filing a new Note of Issue in compliance with a January 13, 1986 order of Hon. Herbert Shapiro to warrant renewal (Foley v. Roche, 68 A.D.2d 558, 562).
In dismissing plaintiff's second complaint, the IAS court properly determined that the plaintiff was not entitled to recommence the underlying personal injury action pursuant to CPLR 205 where the plaintiff's original complaint had twice before been dismissed for lack of prosecution (Benderson Dev. Co. v Litton Business Sys., 130 A.D.2d 941, lv denied 70 N.Y.2d 607).
We have reviewed the plaintiff's remaining claims, and find them to be without merit.
Concur — Murphy, P.J., Wallach, Asch, Kassal and Smith, JJ.