DiPasquale v. Security Mutual Life Insurance

Apr 25, 2002
Versions:293 A.D.2d 394
740 N.Y.S.2d 626

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 ap*395pealable, 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.

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 AD2d 35, 38), which we reject as a mere repackaging of previously dismissed claims (283 AD2d 182, lv dismissed 97 NY2d 653; see, Societe Nationale D’Exploitation Industrielle Des Tabacs Et Allumettes v Salomon Bros Intl., 268 AD2d 373, lv denied 95 NY2d 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 AD2d 68; Di Francesco v Di Francesco, 23 AD2d 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. Concur—Mazzarelli, J.P., Saxe, Sullivan, Wallach and Lerner, JJ.