Opinion
May 5, 1988
Appeal from the Supreme Court, Albany County (Kahn, J.).
The order appealed from, while designated as the denial of a motion to renew, is in fact, an appeal from a denial of a motion to reargue a prior order which denied reargument; as such, it is nonappealable (see, Salisbury v Smith, 99 A.D.2d 581).
A motion to renew must be based upon new facts (see, Matter of Hooker v Town Bd., 60 A.D.2d 684). We find no merit in plaintiff's contention that a prior decision of this court upon appeal from an order dismissing the complaint against defendant Anthony Donato extended the duty of care owed by Donato to plaintiff and, thus, formed the basis for a motion to renew (see, Stewart v Wilkinson, 127 A.D.2d 962). The decision in question merely reaffirmed existing law (see, Hayes v Malkan, 26 N.Y.2d 295). Accordingly, the appeal must be dismissed.
Appeal dismissed, without costs. Kane, J.P., Weiss, Levine, Harvey and Mercure, JJ., concur.