Bhoj v. Bargold Storage Systems, LLC — 303 A.D.2d 437

Majority

p. 437

Benny Bhoj et al., Respondents, v Bargold Storage Systems, LLC, et al., Appellants, et al., Defendants.

[755 NYS2d 890]

—In an action to recover damages for malicious prosecution, false arrest, and intentional infliction of emotional

p. 438

distress, the defendants Bargold Storage Systems, LLC, Vest-pro Management Corporation, Jay Paretsky, and Gerald Goldman appeal from an order of the Supreme Court, Kings County (Barasch, J.), dated March 21, 2002, which denied their motion for leave to renew their prior motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

A motion for leave to renew is based upon new facts which were previously unavailable (see CPLR 2221; Nelson v RPH Constr. Corp., 278 AD2d 465 [2000]; Bulls v Di Lorenzo, 142 AD2d 707 [1988]). The Supreme Court properly denied the appellants’ motion for leave to renew their prior motion for summary judgment. Contrary to the appellants’ contention, the plaintiffs’ deposition testimony did not establish a prima facie showing of entitlement to judgment as a matter of law (see Wlnegrad v New York Univ. Med. Ctr., 64 NY2d 851 , 853 [1985]), and consequently did not constitute “new facts * * * that would change the prior determination” (CPLR 2221 [e]).

The appellants’ remaining contentions are without merit. Feuerstein, J.P., Smith, Cozier and Mastro, JJ., concur.

Cases cited

Nelson v. RPH Construction Corp. 278 AD2d 465 N.Y. App. Div. 2000-12-26 p. 438
Bulis v. Di Lorenzo 142 AD2d 707 N.Y. App. Div. 1988-07-25 p. 438
Winegrad v. New York University Medical Center 64 NY2d 851 N.Y. 1985-02-12 at 853 p. 438