Iadarola v. Orthopedic Institute ( 1994 )

—In an action to recover damages, inter alia, for medical malpractice and lack of informed consent, the defendant Andrew Rosenberg appeals from an order of the Supreme Court, Kings County (Pizzuto, J.), dated November 21, 1991, which denied his motion for summary judgment dismissing the complaint insofar as it is asserted against him.

Ordered that the order is affirmed, with costs.

We initially note that the portion of the record comprising the motion papers upon which an order of the Supreme Court, Kings County (Spodek, J.), dated May 28, 1992, was made, inter alia, denying the appellant’s motion denominated as one to reargue or renew his motion for summary judgment, is not properly before this Court. That motion, although characterized as one for renewal and reargument, was not based upon new facts which were unavailable at the time of the original motion and was therefore actually a motion to reargue, the denial of which is not appealable (see, e.g., Mgrditchian v Donato, 141 AD2d 513; Matter of Bosco, 141 AD2d 639; Matter of Kadish v Colombo, 121 AD2d 722). Furthermore, the denial of that motion is not subject to review pursuant to CPLR 5517 (a) (1) and (b). Accordingly, that portion of the record, which consists of pages 195 through 473, has not been considered by this Court.

Upon review of the portion of the record properly before this Court, we agree with the Supreme Court’s determination to deny the appellant’s motion for summary judgment dismissing the entire complaint insofar as asserted against him. The motion papers submitted on that motion indicate that questions of fact exist precluding summary judgment as to the plaintiffs’ causes of action against the appellant that are grounded in lack of informed consent (see, Public Health Law § 2805-d) and medical malpractice (see, CPLR 3212; Zuckerman v City of New York, 49 NY2d 557, 562). Balletta, J. P., O’Brien, Ritter and Florio, JJ., concur.