Caryl S. v. Child & Adolescent Treatment Services, Inc.

—Order unanimously affirmed with costs. Memorandum: In May 1994 Supreme Court denied defendants’ motion to dismiss the complaint for failure to state a cause of action (Caryl S. v Child & Adolescent Treatment Servs., 161 Misc 2d 563 ). Two years later, defendants moved for renewal on the ground that one of the cases cited in the court’s decision, W. C. W. v Bird ( 840 SW2d 50 [Ct App Tex]), had been reversed on appeal (Bird v W.C.W., 868 SW2d 767 [Sup Ct Tex]). The court properly exercised its discretion in denying the motion. Although a motion to renew may be "based upon law not previously considered” (Johnston v National R. R. Passenger Corp., 161 AD2d 288 , 289; see, Olean Urban Renewal Agency v Herman, 101 AD2d 712 ), the Bird case was neither controlling nor essential to the court’s denial of the motion to dismiss (cf., Olean Urban Renewal Agency v Herman, supra). (Appeal from Order of Supreme Court, Erie County, Howe, J.—Renewal.) Present— Green, J. P., Pine, Lawton, Doerr and Fallon, JJ.