Opinion
February 2, 1998
Appeal from the Supreme Court, Dutchess County (Hillery, J).
Ordered that the appeal from the order dated July 7, 1997, is dismissed; and it is further,
Ordered that the order dated February 28, 1997, is affirmed; and it is further,
Ordered that the respondents are awarded one bill of costs.
The plaintiffs' motion, characterized as one for renewal and reargument of the respondents' prior motion for summary judgment, was not based upon new facts which were unavailable at the time they submitted their opposition to the motion for summary judgment ( see, Bossio v. Fiorilla, 222 A.D.2d 476). Therefore, the plaintiffs' motion was really a motion to reargue, and an order denying reargument is not appealable.
Contrary to the plaintiffs' contention, the evidence adduced failed as a matter of law to establish that storage by the defendant Lawrence Stephen Germano of a certain "black powder rifle" at the offices of the respondents, and his intended loaning of the weapon to his cousin, the plaintiff Joel Germano, was within the scope of Lawrence's employment or in furtherance of the respondents' business interests ( see, Riviello v. Waldron, 47 N.Y.2d 297; Gibilaro v. Lomax Trading Corp., 22 A.D.2d 703, affd 16 N.Y.2d 898).
The plaintiffs' remaining contention is without merit.
Mangano, P.J., Copertino, Joy, Florio and Luciano, JJ., concur.