| Chiappone v William Penn Life Ins. Co. of N.Y. |
| 2012 NY Slip Op 04900 [96 AD3d 1627] |
| June 15, 2012 |
| Appellate Division, Fourth Department |
| Gina M. Chiappone, Individually and as Natural Guardian andGuardian of the Property of Brittney A. Chiappone and Others, Appellant, v William Penn LifeInsurance Company of New York, Respondent, et al., Defendant. |
—[*1] Bleakley Platt & Schmidt, LLP, White Plains (Robert D. Meade of counsel), fordefendant-respondent.
Appeal from an order of the Supreme Court, Niagara County (Richard C. Kloch, Sr., A.J.),entered December 16, 2010. The order denied the motion of plaintiff for leave to reargue andrenew.
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 appeals from an order that denied her motion for leave to reargueand renew her prior motion for summary judgment on the complaint and her opposition to thecross motion of William Penn Life Insurance Company of New York (defendant) for summaryjudgment dismissing the complaint. The appeal from the order insofar as it denied that branch ofplaintiff's motion seeking leave to reargue must be dismissed because no appeal lies from anorder denying leave to reargue (see Hillv Milan, 89 AD3d 1458 [2011]). The appeal from the order insofar as it denied thatbranch of plaintiff's motion seeking leave to renew, however, is properly before us (seeKirchmeyer v Subramanian, 167 AD2d 851 [1990]).
We conclude that Supreme Court did not abuse its discretion in denying plaintiff's motion forleave to renew. Plaintiff failed to establish that the purported new evidence was not in existenceor not available at the time of the prior motion and cross motion (see CPLR 2221 [e][2]; Kirby v Suburban Elec. Engrs.Contrs., Inc., 83 AD3d 1380, 1381 [2011], lv dismissed 17 NY3d 783 [2011];Patel v Exxon Corp., 11 AD3d916, 917 [2004]). Plaintiff further failed to set forth a "reasonable justification for the failureto present such facts on the prior motion [and cross motion]" (CPLR 2221 [e] [3]; seePatel, 11 AD3d at 917; Robinson vConsolidated Rail Corp., 8 AD3d 1080 [2004]). Even assuming, arguendo, that plaintiffoffered new facts in support of her motion for leave to renew, we conclude that those "new factsnot offered on the prior motion [and cross motion] . . . [*2]would [not] change the prior determination" (CPLR 2221 [e] [2];see Garcea v Battista, 53 AD3d1068, 1070 [2008]; Cole v NorthAm. Adm'rs, Inc., 11 AD3d 974, 975 [2004]).
To the extent that plaintiff advances contentions relating to the prior order denying hermotion for summary judgment and granting defendant's cross motion for summary judgmentdismissing the complaint, we note that plaintiff's appeal from that order was deemed abandonedand dismissed pursuant to 22 NYCRR 1000.12 (b) for failure to perfect it. "[A] prior dismissalfor want of prosecution acts as a bar to a subsequent appeal as to all questions that werepresented on the earlier appeal" (Bray v Cox, 38 NY2d 350, 353 [1976]; see Alfieri vEmpire Beef Co., Inc., 41 AD3d 1313 [2007]), and we decline to exercise ourdiscretion to review the merits of those contentions (see Williams v Williams, 52 AD3d 1271 [2008]; Alfieri, 41AD3d 1313; see generally Faricelli v TSS Seedman's, 94 NY2d 772, 774 [1999];Rubeo v National Grange Mut. Ins. Co., 93 NY2d 750, 756 [1999]).Present—Scudder, P.J., Smith, Fahey, Lindley and Martoche, JJ.