Walsh v Schmigelski

Walsh v Schmigelski 2006 NY Slip Op 10055 [35 AD3d 849] December 26, 2006 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 14, 2007

Barbara Walsh et al., Respondents,
v
Carl D. Schmigelski et al., Appellants, et al., Defendant.

—[*1]

In an action, inter alia, to recover damages for medical malpractice and lack of informed consent, etc., the defendants Carl D. Schmigelski, Nassau Anesthesia Associates, P.C., and Virginia O'Connor appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Roberto, J.), dated September 27, 2005, as granted that branch of the plaintiffs' motion which was for leave to renew their prior motion to dismiss the complaint insofar as asserted against them, which had been granted in an order of the same court dated May 4, 2005, and, upon renewal, in effect, vacated that portion of the order dated May 4, 2005 granting the motion to dismiss, denied that motion, and reinstated the complaint insofar as asserted against them.

Ordered that the order is reversed insofar as appealed from, on the law and in the exercise of discretion, with costs, that branch of the plaintiffs' motion which was for leave to renew is denied, and that portion of the order dated May 4, 2005 which granted the appellants' motion to dismiss the complaint insofar as asserted against them is reinstated.

Under the circumstances of this case, the Supreme Court improvidently exercised its discretion in granting that branch of the plaintiffs' motion which was for leave to renew, since the plaintiffs failed to establish a reasonable excuse as to why the additional facts they offered were not submitted on the original motion (see CPLR 2221 [e] [2], [3]; Dahlin v Paladino, 14 [*2]AD3d 647, 647-648 [2005]; Gallagher v Daniella's Rest., 6 AD3d 659 [2004]).

In light of the foregoing determination, we need not address the appellants' remaining contentions. Miller, J.P., Krausman, Spolzino, Fisher and Dillon, JJ., concur.