Saferstein v. Stark
| Decision Date | 25 March 1991 |
| Citation | 568 N.Y.S.2d 27,171 A.D.2d 856 |
| Parties | Sheila SAFERSTEIN, etc., Appellant, v. Richard M. STARK, et al., Respondents, et al., Defendant. |
| Court | New York Supreme Court — Appellate Division |
Glaser, Shandell & Blitz, New York City (Dorothy S. Vivas, of counsel), for appellant.
Kelly, Rode, Kelly & Burke, Westbury (Charles C. Nicholas, of counsel), for respondents Morrison, Kaplan, Kothin and Glatter.
Before BRACKEN, J.P., and BROWN, O'BRIEN and RITTER, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for wrongful death, etc., the plaintiff appeals from (1) an order of the Supreme Court, Nassau County (Collins, J.), dated October 5, 1988, which granted the motion of the defendants J. Morrison, Laurence Kaplan, Irwin Kothin and Eugene Glatter to compel the plaintiff to produce certain X-rays of the plaintiff's decedent and denied the plaintiff's cross motion to compel them to produce those X-rays, and (2) an order of the same court, dated September 12, 1989, which, denied the plaintiff's motion for leave to renew the prior motion and cross motion which the Supreme Court deemed a motion for reargument.
ORDERED that the appeal from the order dated October 5, 1988, is dismissed, without costs or disbursements, as academic, in light of our determination with respect to the appeal from the order dated September 12, 1989.
Although the affidavits submitted by the plaintiff in support of her motion for renewal contained facts which the plaintiff failed to demonstrate were newly discovered, "the requirement that a motion for renewal be based upon newly discovered facts is a flexible one, and a court may in its discretion grant renewal upon facts known to the moving party at the time of the original motion" (Patterson v. Town of Hempstead, 104 A.D.2d 975, 976, 480 N.Y.S.2d 899). Here the Supreme Court failed to recognize that it possessed such discretion, and it therefore erred in summarily denying...
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