Opinion
March 25, 1996
Appeal from the Supreme Court, Queens County (Rutledge, J.).
Ordered that the order is modified by deleting the provision thereof which, upon renewal, vacated so much of the order dated January 30, 1995, as granted the cross motion of the defendant Yellowstone Shopping Center Company for summary judgment and substituting therefor a provision adhering to that prior determination; as so modified, the order is affirmed, with costs to the appellant, and the complaint and all cross claims insofar as asserted against the appellant are dismissed.
The factual and procedural background of this case are set forth in Vayser v Waldbaum, Inc. ( 225 A.D.2d 761 [decided herewith]).
Although a motion to renew is generally based upon the discovery of material facts which were unknown to the movant at the time of the original motion ( see, Chiarella v Quitoni, 178 A.D.2d 502), it is well settled that "[t]he requirement * * * 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" ( Karlin v. Bridges, 172 A.D.2d 644, 645; CPLR 2221). Under the facts of this case, the Supreme Court properly exercised that discretion and considered the motion of Waldbaum, Inc., as one for leave to renew the prior motion.
In the absence of a duty, there is no breach and, without a breach, there is no liability ( see, Pulka v Edelman, 40 N.Y.2d 781, 782; Kimbar v Estis, 1 N.Y.2d 399, 405). Here, "[t]he accident happened as a result of the driver's failure to control his vehicle. The premises 'merely furnished the condition or occasion for the occurrence of the event rather than [being] one of its causes'" ( Margolin v Friedman, 43 N.Y.2d 982, 983). There was no causal connection between the design or maintenance of the shopping center and the accident. Accordingly, Yellowstone Shopping Center Company is entitled to summary judgment dismissing the complaint and all cross claims insofar as asserted against it. Balletta, J.P., Thompson, Pizzuto and Altman, JJ., concur.