Opinion
2004-02733.
April 11, 2005.
In an action to recover damages for personal injuries, etc., the defendant New York City Transit Authority appeals from an order of the Supreme Court, Kings County (Hutcherson, J.), dated October 23, 2003, which denied its motion, denominated as one for leave to reargue and renew, but which was, in effect, solely for leave to reargue its prior motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.
Wallace D. Gossett (Steven S. Efron, New York, N.Y. [Renée Cyr] of counsel), for appellant.
Robert C. Fontanelli, P.C. (Pollack, Pollack, Isaac DeCicco, New York, N.Y. [Brian J. Isaac] of counsel), for plaintiffs-respondents.
Before: Santucci, J.P., Krausman, Luciano and Fisher, JJ., concur.
Ordered that the appeal is dismissed, with costs payable to the respondents.
The only determination made by the Supreme Court in the order appealed from was the denial of the motion by the defendant New York City Transit Authority "to reargue" its prior motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it. Although the motion was denominated as one for leave to reargue and renew a prior summary judgment motion, the Supreme Court correctly treated it as one, in effect, for leave to reargue, since it was not based on new facts that were unavailable at the time the prior motion was still pending ( see CPLR 2221 [e]). Accordingly, the appeal must be dismissed ( see O'Ferral v. City of New York, 8 AD3d 457, 459; Longo v. County of Nassau, 6 AD3d 670; Elias v. Grossman, 306 AD2d 432, 433).