Toussaint v. Noels Market

• Decision Date: 26 February 2001
• Citation: Toussaint v. Noels Market, 280 A.D.2d 665, 721 N.Y.S.2d 249 (N.Y. App. Div. 2001)
• Court: New York Supreme Court — Appellate Division
• Parties: NINA TOUSSAINT, Respondent,<BR>v.<BR>NOELS MARKET, Appellant.

280 A.D.2d 665

721 N.Y.S.2d 249

NINA TOUSSAINT, Respondent,

v.NOELS MARKET, Appellant.

Decided February 26, 2001.

Ritter, J.P., Krausman, Florio and Feuerstein, JJ., concur.

Ordered that the order is modified, on the law, by deleting the provision thereof vacating the order dated January 26, 2000, and denying the defendant's motion to dismiss the complaint pursuant to CPLR 3211 (a)(1) and (7) and for summary judgment, and substituting therefor a provision adhering to the original determination in the order dated January 26, 2000; as so modified, the order is affirmed, with costs to the defendant.

While a motion for leave to renew a prior motion generally should be based on newly-discovered facts, it is within the court's discretion to grant renewal even upon facts that were known to the movant at the time of the original motion (see, Lupoli v Venus Labs.,264 AD2d 820;Pepe v Tannenbaum,262 AD2d 381, 382).Here, the court properly exercised its discretion and accepted as new evidence proof that was available to the plaintiff at the time of the defendant's original...