Opinion
Submitted May 25, 1999
July 12, 1999
In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Jackson, J.), dated May 5, 1998, which granted the plaintiff's motion for leave to renew the defendant's prior motion for summary judgment dismissing the complaint, and, upon renewal, denied that motion.
Cullen and Dykman, Brooklyn, N.Y. (Joseph C. Fegan and Rona L. Kaplan of counsel), for appellant.
Benedict P. Morelli Associates, P.C., New York, N.Y. (David S. Ratner and Steven C. November of counsel), for respondent.
LAWRENCE J. BRACKEN, J.P., GLORIA GOLDSTEIN, LEO F. McGINITY, ROBERT W. SCHMIDT, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
The requirement that a motion for leave to renew 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, Daniel Perla Assocs. v. Ginsberg, 256 A.D.2d 303 [2d Dept., Dec. 7, 1998]). Under the circumstances of this case, the grant of renewal was a proper exercise of the Supreme Court's discretion.
The affidavits submitted by the plaintiffs upon renewal were sufficient to create triable issues of fact. Therefore, the defendant's motion for summary judgment dismissing the complaint was properly denied ( see, CPLR 3212[b]).