Navarette v Alexiades

2008 NY Slip Op 03434 [50 AD3d 873]

April 15, 2008

Appellate Division, Second Department

As corrected through Wednesday, June 18, 2008

Jorge Navarette, Appellant, v Michael Alexiades et al.,Respondents, et al., Defendants.

—[*1]Cardali & Cardali, P.C. (Arnold E. DiJoseph, P.C., New York, N.Y. [Arnold E.DiJoseph III] of counsel), for appellant.

Aaronson, Rappaport, Feinstein & Deutsch, LLP (Steven C. Mandell of counsel), forrespondent Michael Alexiades.

Peltz & Walker, New York, N.Y. (Bhalinder L. Rikhye of counsel), for respondent Hospitalfor Special Surgery.

In an action, inter alia, to recover damages for medical malpractice and lack of informedconsent, the plaintiff appeals from an order of the Supreme Court, Queens County (Dollard, J.),entered June 20, 2006, which denied that branch of his motion, denominated as one for leave torenew and reargue, but which was, in actuality, one for leave to reargue his opposition to theprior motion of the defendant Michael Alexiades, and the separate motion of the defendantsBarry Waldman, Gary S. Shapiro, and Hospital for Special Surgery to preclude his experts fromtestifying at the trial on the ground that he failed to timely provide expert witness disclosurepursuant to CPLR 3101 (d), which was granted, in part, by an order of the same court enteredFebruary 21, 2006, and that branch of his motion, denominated as one for leave to reargue andrenew, but which was, in actuality, one for leave to reargue his prior motion for leave to amendhis bill of particulars, which was denied by an order of the same court, also entered February 21,2006.

Ordered that the appeal is dismissed, with one bill of costs to the respondents.

The plaintiff's motion, which was denominated as for one for leave to renew and reargue,was not based on new facts (see CPLR 2221 [e]; Trahan v Galea, 48 AD3d 791 [2008]). Therefore, [*2]the motion, denominated as one for leave to renew and reargue,was, in actuality, one for leave to reargue, the denial of which is not appealable (see Trahan v Galea, 48 AD3d 791[2008]; Eight In One Pet Prods. v JancoPress, Inc., 37 AD3d 402 [2007]). Spolzino, J.P., Skelos, Florio and Dickerson, JJ.,concur.