Opinion
March 4, 1996
Appeal from the Supreme Court, Nassau County (McCaffrey, J.).
Ordered that the order is affirmed, with costs.
Generally, "[a]n application for leave to renew must be based upon additional material facts which existed at the time the prior motion was made, but were not then known to the party seeking leave to renew, and, therefore, not made known to the court" ( Foley v Roche, 68 A.D.2d 558, 568). While "a court, in its discretion, may grant renewal upon facts known to the moving party at the time of the original motion" ( Karlin v Bridges, 172 A.D.2d 644, 645; see, Oremland v Miller Minutemen Constr. Corp., 133 A.D.2d 816, 818; Patterson v Town of Hempstead, 104 A.D.2d 975, 976), renewal should not be available "where a party has proceeded on one legal theory on the assumption that what has been submitted is sufficient, and thereafter sought to move again on a different legal argument merely because he was unsuccessful upon the original application" ( Foley v Roche, supra, at 568). Since this is precisely what the plaintiffs were attempting to do in this case, we conclude that, under the circumstances, the court did not improvidently exercise its discretion in denying the plaintiffs' motion. Bracken, J.P., Miller, Joy, Hart and Krausman, JJ., concur.