Opinion
May 25, 1993
Appeal from the Supreme Court, New York County (Edward Lehner, J.).
Appeal from order, same court and Justice entered September 17, 1992, which, in relevant part, denied plaintiffs' motion to reargue the prior motion, dismissed as non-appealable.
Plaintiffs seek to avoid summary judgment by claiming a need for more discovery. They did not affirmatively demonstrate mutual mistake by clear and convincing evidence, or that there was a "likelihood" that there is relevant evidence in defendant insurer's exclusive knowledge (see, Finnerty v Brookhaven Mem. Hosp., 116 A.D.2d 693, 694), or "demonstrate how further discovery might reveal the existence of" such evidence (Home Sav. Bank v Arthurkill Assocs., 173 A.D.2d 776, 777, lv dismissed 78 N.Y.2d 1071). Nor did plaintiffs demonstrate a reasonable attempt, prior to the motion, to pursue the discovery now claimed to be necessary (see, Unisource, Inc. v Wolfe, 169 A.D.2d 567, 568). We further note that the third-party defendant was an employee of plaintiff Roland and not of the named insured plaintiff Atomergic.
Concur — Sullivan, J.P., Ross, Kassal and Nardelli, JJ.