Opinion
December 7, 1998
Appeal from the Supreme Court, Nassau County (Bucaria, J.).
Ordered that the order dated January 15, 1998, is reversed, on the law, the appellant's motion is granted, upon renewal, so much of the order dated September 26, 1997, as is in favor of the plaintiff and against the appellant is vacated, and that branch of the plaintiff's motion which was for summary judgment against the appellant is denied; and it further,
Ordered that the appeal from the order dated September 26, 1997 is dismissed as academic; and it is further,
Ordered that the appellant is awarded one bill of costs.
The appellant's motion, although labeled as one for reargument should have been denominated as one to renew since it was supported by new evidence ( see, Karlin v. Bridges, 172 A.D.2d 644, 645). The requirement that a motion for renewal be based upon newly-discovered facts is a flexible one, and a court, in its discretion, may grant renewal upon facts known to the moving party at the time of the original motion ( see, Oremland v. Miller Minutemen Constr. Corp., 133 A.D.2d 816). Under the circumstances of this case, the court should have exercised its discretion to grant the appellant's motion for leave to renew the plaintiff's prior motion for summary judgment in lieu of complaint, and upon renewal to deny so much of the motion as was for summary judgment against the appellant. The affidavit by a handwriting expert, which the appellant submitted on the motion to renew, raised a triable issue of fact ( see, CPLR 3212 [b]) as to whether the appellant's signature on the guarantee was forged.
Mangano, P. J., Joy, Friedmann and Goldstein, JJ., concur.