Stein v. County of Westchester — 172 A.D.2d 742

Majority

p. 742

Edward J. Stein, as Executor of Gertrude Stein, Deceased, Appellant, v County of Westchester et al., Respondents.

In an action to recover damages for medical malpractice, the plaintiff appeals from an order of the Supreme Court, Westchester County (Donovan, J.), entered October 23, 1989, which denied his motion for "renewal” of his motion for leave to amend the complaint to add a cause of action to recover damages for conscious pain and suffering, which was denied by an order of the same court dated May 15, 1989.

Ordered that the appeal is dismissed, with costs.

Since the plaintiff’s motion was not based upon new facts which were unavailable at the time he submitted his original motion for leave to amend the complaint, it was not a motion for renewal, but a motion for reargument (see, Spear v Herbert, 152 AD2d 558 ), the denial of which is not appealable (see,

p. 743

De Freitas v Board of Educ., 129 AD2d 672 ). Thompson, J. P., Brown, Harwood and Balletta, JJ., concur.