Opinion
8999 Index 150294/11
04-16-2019
Elsa SARMIENTO, Plaintiff-Respondent, v. AMPEX CASTING CORPORATION, et al., Defendants-Appellants.
Gerstman Schwartz & Malito, LLP, Garden City (David M. Schwartz of counsel), for appellants.
Gerstman Schwartz & Malito, LLP, Garden City (David M. Schwartz of counsel), for appellants.
Renwick, J.P., Gische, Kapnick, Kern, Moulton, JJ.
Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered August 15, 2017, which denied defendants' motion to renew their prior CPLR 3216 motion to dismiss the complaint, unanimously affirmed, with costs.
We decline to consider defendants' argument that plaintiff's affidavit of merit is inadmissible because it was not supported by a translator's affidavit, since it is raised for the first time on appeal (see e.g Diarrassouba v. Consolidated Edison Co. of N.Y. Inc., 123 A.D.3d 525, 999 N.Y.S.2d 33 [1st Dept. 2014] ).
The court did not abuse its discretion in denying the motion to renew (see Central Amusement Intl. LLC v. Lexington Ins. Co., 162 A.D.3d 452, 453, 75 N.Y.S.3d 35 [1st Dept. 2018] ; CPLR 2221[e] ). Defendants' application lacks a sufficient factual or legal basis, and is an indirect attempt to challenge the truth of the allegations in the complaint, which is more appropriately left for at trial.