Opinion
November 14, 1988
Appeal from the Supreme Court, Queens County (Durante, J.).
Ordered that the order is affirmed, with costs.
An order directing a judicial hearing to aid in the disposition of a motion is not appealable as of right (see, e.g., Kromholz v Notey, 121 A.D.2d 668; Stewart v. County of Nassau, 120 A.D.2d 516; Bagdy v. Progresso Foods Corp., 86 A.D.2d 589). The instant appeal from an order directing that a hearing be conducted is not dismissible on that basis, however, because the portion of the order which granted renewal and, upon renewal, vacated the court's prior order affects a substantial right and, therefore, is appealable as of right (CPLR 5701 [a] [2] [v]; see, Bartels v Bartels, 119 A.D.2d 714, 715).
We find that the Supreme Court properly exercised its discretion to grant renewal based upon new proof, i.e., the affidavits of the defendants. Although a motion for leave to renew should be based on newly discovered facts (see, Watsky v Town of Ossining Planning Bd., 136 A.D.2d 634; Esa v. New York Prop. Ins. Underwriting Assn., 89 A.D.2d 865, 866), there are occasions where renewal may be granted upon the basis of facts known to the moving party at the time of the original motion (Watsky v. Town of Ossining Planning Bd., supra, at 635; Matter of Albanese v. Village of Floral Park, 128 A.D.2d 611, 614). The additional proof submitted upon renewal reaffirmed the allegation made by defense counsel on the original motion that the defendants did not reside at the address where service was made.
Moreover, we conclude that the Supreme Court properly considered the defendants' objection to personal jurisdiction despite the defendants' failure to raise it in the first instance in their notice of motion to dismiss made pursuant to CPLR 3211 or in their supporting affirmation. The plaintiff could not have been prejudiced by this technical defect in form because the defendants' papers submitted in opposition to the plaintiff's cross motion to amend his complaint and in reply to the opposing papers on the motion to dismiss specifically raised their objection to personal jurisdiction. The plaintiff also had and exercised the opportunity to respond to the defendants' objection. Thus, while the omission of this ground for dismissal would ordinarily constitute a waiver thereof (see, CPLR 3211 [e]; Addesso v. Shemtob, 70 N.Y.2d 689), under the present circumstances the Supreme Court properly entertained the defendants' objection (see, Farkas v. Tarrytown Lbr., 133 A.D.2d 251; Russell v. Trask Co., 125 A.D.2d 136, 138-139). Thompson, J.P., Bracken, Brown and Sullivan, JJ., concur.