Opinion
Argued January 21, 2000
February 28, 2000
In an action to recover damages for breach of an employment contract, the defendant appeals from an order of the Supreme Court, Nassau County (DeMaro, J.), entered December 8, 1998, which granted the plaintiff's cross motion for renewal and, upon renewal, vacated so much of a prior order of the same court dated June 5, 1998, as granted the defendant's cross motion for summary judgment dismissing the complaint, and denied that cross motion.
Morrison Cohen Singer Weinstein, LLP, New York, N.Y. (Malcolm I. Lewin and Kieran X. Bastible of counsel), for appellant.
Moritt, Hock Hamroff, LLP, Garden City, N.Y. (Robert M. Tils and Terese L. Arenth of counsel), for respondent.
CORNELIUS J. O'BRIEN, J.P., DANIEL W. JOY, ANITA R. FLORIO, HOWARD MILLER, JJ.
DECISION ORDER
ORDERED that the order entered December 8, 1998, is modified by deleting the provision thereof vacating stated portions of the order dated June 5, 1998, and denying the defendant's cross motion for summary judgment dismissing the complaint, and substituting therefore a provision stating that, upon renewal, the original determination is adhered to; as so modified, the order entered December 8, 1998, is affirmed, with costs to the defendant.
The Supreme Court providently exercised its discretion in granting the plaintiff's motion for leave to renew (see, Motts v. Cohen, 264 A.D.2d 764 [2d Dept., Sep. 20, 1999]; Gadson v. New York City Housing Authority, 263 A.D.2d 464 [2d Dept., July 12, 1999]). However, upon renewal, the Supreme Court should have adhered to its original determination, since none of the purportedly new evidence raised a triable issue of fact sufficient to defeat the defendant's motion for summary judgment (see, CPLR 3212[b]; Gadson v. New York City Housing Authority, supra; cf., Motts v. Cohen, supra; Brower v. TRW Tit. Ins. of N.Y., 233 A.D.2d 473).