C.R. v. Pleasantville Cottage School

Feb 18, 2003
Versions:302 A.D.2d 259
756 N.Y.S.2d 2
2003 N.Y. App. Div. LEXIS 1484

Order, Supreme Court, Bronx County (Bertram Katz, J.), entered July 1, 2002, which, in an action against a residential care facility (Social Services Law, art 7, § 460 et seq.) and its owner for negligent supervision allegedly resulting in assaults on the infant plaintiff, and in which action, by order entered March 12, 2002, defendants were directed to produce plaintiffs records and to disclose the identities of any witnesses to the assaults, (1) denied defendants’ motion to modify the prior order so as to (a) permit redaction of the names of nonparty residents identified in plaintiffs records and (b) withhold identification of witnesses who are present or former residents of the facility pending notification of interested persons, and (2) denied plaintiffs cross motion to renew the same prior or*260der insofar as it refused to compel defendants to produce records concerning plaintiffs assailants, unanimously affirmed with respect to the denial of plaintiffs motion to renew, and the appeal unanimously dismissed with respect to the denial of defendants’ motion to modify, all without costs.

Defendants’ motion, which sought modification or reargument of the prior order as alternative forms of relief, was merely one to reargue, as it offered no new evidence and only argued that the motion court overlooked or misunderstood Social Services Law § 372 (CPLR 2221 [d]; see Foley v Roche, 68 AD2d 558, 567-568). Since the denial of reargument is not appealable (Haberman v Wright, 295 AD2d 142), defendants’ appeal is dismissed. We reject defendants’ argument that the motion court effectively granted reargument, but adhered to the prior order, by commenting that defendants did not raise the question of redaction in their prior motion for a protective order.

Plaintiffs motion to renew was properly denied since the purportedly new material he offered, namely, the assailants’ last known addresses, was available on his prior motion to compel disclosure. Although that motion had attached as exhibits the juvenile delinquency petition of one of the assailants, indicating his mother’s name and address, and other records from the local police and courts, plaintiffs motion to renew did not describe any attempts to obtain information from these nonprivileged sources (CPLR 2221 [e] [3]). In any event, the new evidence, if considered, would not warrant a different result (CPLR 2221 [e] [2]). The motion court did not deny plaintiffs motion to compel disclosure of the assailants’ records because of lack of notice to the assailants or the absence of the assailants’ last known addresses. Rather, the decision was based on a finding that the records are privileged under Social Services Law §§ 372 and 460-e, and that disclosure would not further the public interest. Concur — Andrias, J.P., Sullivan, Rosenberger, Friedman and Gonzalez, JJ.