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ROBERT ILAS, Plaintiff-Appellant, v. NIHAGEN CO., INC., ETC., ET AL., Defendants-Respondents, SAMIR N. MASRI, ETC., Defendant.

Assuming that Emouna is a nonparty witness as plaintiff contends, the motion court properly exercised its discretion in determining that plaintiff failed to show sufficient cause to depose Emouna since plaintiff failed to make the requisite demonstration that the information sought from Emouna was material and necessary (see King v. State Farm Mut. Auto. Ins. Co., 198 A.D.2d 748; Greasy Spoon, Inc. v. Jefferson Towers, Inc., 181 A.D.2d 639). The award of $150 in costs to defendants pursuant to 22 NYCRR § 130-1.1(a) was not warranted under the particular circumstances presented. Inasmuch as plaintiff failed to allege new or previously unavailable facts in support of his motion for reargument and renewal, the motion is properly viewed simply as one for reargument and, as such, is not appealable (see Lichtman v. Mt. Judah Cemetery, 269 A.D.2d 319, 320).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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ILAS v. NIHAGEN CO
(Mar 25, 2003)