         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1183
CA 11-01087
PRESENT: SCUDDER, P.J., SMITH, SCONIERS, GORSKI, AND MARTOCHE, JJ.


OMAR HILL, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

LILLIE B. MILAN, DEFENDANT-RESPONDENT.


WILLIAM K. MATTAR, P.C., WILLIAMSVILLE (ANTHONY J. TANTILLO OF
COUNSEL), FOR PLAINTIFF-APPELLANT.

BOUVIER PARTNERSHIP, LLP, BUFFALO (NORMAN E.S. GREENE OF COUNSEL), FOR
DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Gerald J.
Whalen, J.), entered August 18, 2010 in a personal injury action. The
order denied the motion of plaintiff for leave to reargue the order of
the court entered March 22, 2010 and to vacate or modify the order of
the court entered December 9, 2009.

     It is hereby ORDERED that said appeal from the order insofar as
it denied leave to reargue is unanimously dismissed and the order is
otherwise affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries he allegedly sustained when he was struck by a vehicle owned
by defendant. Plaintiff appeals from an order that denied his motion
seeking, inter alia, leave to renew or reargue his prior motion
insofar as it sought to extend his time to appear for an independent
medical examination (IME). We conclude at the outset that the appeal
from the order insofar as it denied that part of plaintiff’s motion
seeking leave to renew or reargue must be dismissed. In support of
that part of the motion seeking leave to renew, plaintiff failed to
offer new facts that were unavailable at the time of his prior motion.
Thus, that part of plaintiff’s motion purportedly seeking leave to
renew was actually seeking leave to reargue, and no appeal lies from
an order denying leave to reargue (see Matter of Wayne T.I. v Latisha
T.C., 48 AD3d 1165; Schaner v Mercy Hosp. of Buffalo, 16 AD3d 1095,
1096).

     Contrary to the contention of plaintiff, Supreme Court properly
denied that part of his motion seeking to vacate a conditional order
dismissing the complaint based on his failure to appear and submit to
an IME at a specified date and time (see generally CPLR 5015 [a] [1];
Lauer v City of Buffalo, 53 AD3d 213, 215-216). Plaintiff failed to
establish a reasonable excuse for his failure to appear at the IME and
                                 -2-                          1183
                                                         CA 11-01087

a potentially meritorious cause of action (see Castle v Avanti, Ltd.,
86 AD3d 531; Testa v Koerner Ford of Syracuse, 261 AD2d 866, 868).




Entered:   November 10, 2011                   Patricia L. Morgan
                                               Clerk of the Court
