Summary
affirming dismissal of amended pleading that was "mere repackaging of previously dismissed claims"
Summary of this case from U.S. Bank Nat'l Ass'n v. Countrywide Home Loans, Inc.Opinion
852
April 25, 2002.
Order, Supreme Court, New York County (Paula Omansky, J.), entered December 20, 2000, which, in a consolidated action arising out of the termination of partial disability insurance payments, granted the insurers' motion to dismiss various of the insured's claims and denied the insured's cross motion to amend his pleading, unanimously affirmed, with costs. Appeal from order, same court and Justice, entered on or about September 24, 2001, which, insofar as appealable, denied the insured's motion to renew a prior order, entered on or about June 29, 2001, inter alia, declaring that the insured is not entitled to further partial disability payments, unanimously dismissed, with costs payable to plaintiff-respondent by defendant-appellant.
Christopher E. Dipasquale, plaintiff-appellant, pro se.
Eugene R.Anderson for Amicus Cruiae.
George Berger, for defendants-respondents plaintiff-respondent.
Before: Mazzarelli, J.P., Saxe, Sullivan, Wallach, Lerner, JJ.
Since the insured did not attempt to defend his pleading but instead sought the amendment, we consider the insurers' motion to dismiss as directed to the proposed amendment (see, Sage Realty Corp. v. Proskauer Rose, 251 A.D.2d 35, 38), which we reject as a mere repackaging of previously dismissed claims ( 283 A.D.2d 182, lv dismissed 97 N.Y.2d 653;see, Societe Nationale D'Exploitation Industrielle Des Tabacs Et Allumettes v. Salomon Bros Intl., 268 A.D.2d 373, lv denied 95 N.Y.2d 762). In any event, as the motion court held, the proposed pleading lacks merit. We dismiss the appeal from the denial of renewal because of the insured's failure to include in the record on appeal the papers that were before the motion court on the motions sought to be renewed (see,Ferenczy v. Murray Hill Partners, 272 A.D.2d 68; Di Francesco v. Di Francesco, 23 A.D.2d 740). Under the circumstances, the award of $100 motion costs was a proper exercise of discretion (CPLR 8106). We have considered and rejected the insured's other contentions. The insurers' renewed request to strike portions of the insured's brief and record on appeal is granted.
Motion seeking leave to file an Amicus Curiae brief granted.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.