Stewart v. Donato ( 1988 )

— Kane, J. P.

The order appealed from, while designated as the denial of a motion to renew, is in fact, an appeal from a denial of a motion to reargue a prior order which denied reargument; as such, it is nonappealable (see, Salisbury v Smith, 99 AD2d 581).

A motion to renew must be based upon new facts (see, Matter of Hooker v Town Bd., 60 AD2d 684). We find no merit in plaintiff’s contention that a prior decision of this court upon appeal from an order dismissing the complaint against defendant Anthony Donato extended the duty of care owed by Donato to plaintiff and, thus, formed the basis for a motion to renew (see, Stewart v Wilkinson, 127 AD2d 962). The decision in question merely reaffirmed existing law (see, Hayes v Malkan, 26 NY2d 295). Accordingly, the appeal must be dismissed.

Appeal dismissed, without costs. Kane, J. P., Weiss, Levine, Harvey and Mercure, JJ., concur.