Sarmiento v. Ampex Casting Corp.

Sarmiento v Ampex Casting Corp. (2019 NY Slip Op 02830)

Sarmiento v Ampex Casting Corp.

2019 NY Slip Op 02830

Decided on April 16, 2019

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 16, 2019
Renwick, J.P., Gische, Kapnick, Kern, Moulton, JJ.

8999 150294/11

[*1]Elsa Sarmiento, Plaintiff-Respondent,

v

Ampex Casting Corporation, et al., Defendants-Appellants.

Gerstman Schwartz & Malito, LLP, Garden City (David M. Schwartz of counsel), for appellants.

Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered August 15, 2017, which denied defendants' motion to renew their prior CPLR 3216 motion to dismiss the complaint, unanimously affirmed, with costs.

We decline to consider defendants' argument that plaintiff's affidavit of merit is inadmissible because it was not supported by a translator's affidavit, since it is raised for the first time on appeal (see e.g Diarrassouba v Consolidated Edison Co. of N.Y. Inc., 123 AD3d 525 [1st Dept 2014]).

The court did not abuse its discretion in denying the motion to renew (see Central Amusement Intl. LLC v Lexington Ins. Co., 162 AD3d 452, 453 [1st Dept 2018]; CPLR 2221[e]). Defendants' application lacks a sufficient factual or legal basis, and is an indirect attempt to challenge the truth of the allegations in the complaint, which is more appropriately left for at trial.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 16, 2019

CLERK