| Hill v Milan |
| 2011 NY Slip Op 08031 [89 AD3d 1458] |
| November 10, 2011 |
| Appellate Division, Fourth Department |
| Omar Hill, Appellant, v Lillie B. Milan,Respondent. |
—[*1] Bouvier Partnership, LLP, Buffalo (Norman E.S. Greene of counsel), fordefendant-respondent.
Appeal from an order of the Supreme Court, Erie County (Gerald J. Whalen, J.), entered August18, 2010 in a personal injury action. The order denied the motion of plaintiff for leave to reargue theorder of the court entered March 22, 2010 and to vacate or modify the order of the court enteredDecember 9, 2009.
It is hereby ordered that said appeal from the order insofar as it denied leave to reargue isunanimously dismissed and the order is otherwise affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries he allegedly sustainedwhen he was struck by a vehicle owned by defendant. Plaintiff appeals from an order that denied hismotion seeking, inter alia, leave to renew or reargue his prior motion insofar as it sought to extend histime to appear for an independent medical examination (IME). We conclude at the outset that theappeal from the order insofar as it denied that part of plaintiff's motion seeking leave to renew orreargue must be dismissed. In support of that part of the motion seeking leave to renew, plaintiff failedto offer new facts that were unavailable at the time of his prior motion. Thus, that part of plaintiff'smotion purportedly seeking leave to renew was actually seeking leave to reargue, and no appeal liesfrom an order denying leave to reargue (seeMatter of Wayne T.I. v Latisha T.C., 48 AD3d 1165 [2008]; Schaner v Mercy Hosp. of Buffalo, 16AD3d 1095, 1096 [2005]).
Contrary to the contention of plaintiff, Supreme Court properly denied that part of his motionseeking to vacate a conditional order dismissing the complaint based on his failure to appear and submitto an IME at a specified date and time (see generally CPLR 5015 [a] [1]; Lauer v City of Buffalo, 53 AD3d 213,215-216 [2008]). Plaintiff failed to establish a reasonable excuse for his failure to appear at the IMEand a potentially meritorious cause of action (see Castle v Avanti, Ltd., 86 AD3d 531 [2011]; Testa v KoernerFord of Syracuse, 261 AD2d 866, 868 [1999]). Present—Scudder, P.J., Smith, Sconiers,Gorski and Martoche, JJ.