661 N.Y.S.2d 168 | N.Y. App. Div. | 1997
—Order unanimously affirmed with costs. Memorandum: In May 1994 Supreme Court denied defendants’ motion to dismiss the complaint for failure to state a cause of action (Caryl S. v Child & Adolescent Treatment Servs., 161 Misc 2d 563). Two years later, defendants moved for renewal on the ground that one of the cases cited in the court’s decision, W. C. W. v Bird (840 SW2d 50 [Ct App Tex]), had been reversed on appeal (Bird v W.C.W., 868 SW2d 767 [Sup Ct Tex]). The court properly exercised its discretion in denying the motion. Although a motion to renew may be "based upon law not previously considered” (Johnston v National R. R. Passenger Corp., 161 AD2d 288, 289; see, Olean Urban Renewal Agency v Herman, 101 AD2d 712), the Bird case was neither controlling nor essential to the court’s denial of the motion to dismiss (cf., Olean Urban Renewal Agency v Herman, supra). (Appeal from Order of Supreme Court, Erie County, Howe, J.—Renewal.) Present— Green, J. P., Pine, Lawton, Doerr and Fallon, JJ.
