Paulk v. City of Niagara Falls

Appeal from an order of the Supreme Court, Niagara County (Ralph A. Boniello, III, J.), entered July 22, 2005. The order, among other things, granted plaintiffs’ motion seeking leave to renew and, upon renewal, granted plaintiffs’ motion for leave to amend the complaint and denied that part of defendant’s cross motion seeking to dismiss the complaint.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Supreme Court properly exercised its discretion in granting that part of plaintiffs’ motion seeking leave to renew that part of defendant’s cross motion seeking to dismiss the complaint, and upon renewal, denying that part of the cross motion. The court had granted that part of the cross motion “without prejudice” (see generally Pandolf v American Intl. Group, Inc., 16 AD3d 315, 316-317 [2005]), and the material submitted by plaintiffs in support of renewal, which was in defendant’s possession at the time of the cross motion, “would change the prior determination” (CPLR 2221 [e] [2]; see Matter of Olsen v County of Nassau, 14 AD3d 706, 707 [2005]). Present—Gorski, J.P, Fahey, Peradotto, Green and Pine, JJ.