Opinion
December 24, 1990
Appeal from the Supreme Court, Kings County (I. Aronin, J.).
Ordered that the order is affirmed, with costs.
The defendant's challenge to a prior decision of the same court dated January 24, 1989, vacating the plaintiff's default in responding to the defendant's motion for summary judgment is not properly before us.
While a motion for leave to renew a prior motion should generally be based on newly discovered facts (see, Caffee v. Arnold, 104 A.D.2d 352), it is within a court's "discretion to grant renewal even upon facts known to the movant at the time of the original motion" (Esa v. New York Prop. Ins. Underwriting Assn., 89 A.D.2d 865, 866; see also, Oremland v. Miller Minutemen Constr. Corp, 133 A.D.2d 816, 818; Vitale v. La Cour, 96 A.D.2d 941). 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 motion for summary judgment. This new proof, an affidavit from the plaintiff's employer who had personal knowledge regarding the plaintiff's work assignments, has clearly raised an issue of fact regarding the date of the accident. Bracken, J.P., Harwood, O'Brien and Ritter, JJ., concur.