McNAMARA v. ROCKLAND COUNTY PATROLMEN'S

ORDERED that the appeal from the order dated August 3, 2001, is dismissed as abandoned; and it is further,

ORDERED that the order dated November 16, 2001, is affirmed insofar as appealed from; and it is further,

ORDERED that one bill of costs is awarded to the respondent.

The plaintiff's motion, denominated as one for renewal and reargument, was not based upon new evidence that was unavailable at the time of the original motion (see CPLR 2221[e]; Cong. Bais Rabbenu v. 26 Adar N.B. Corp., 282 A.D.2d 642). Therefore, the motion was actually one for reargument (see McCorvey v. Schoulder, 273 A.D.2d 207). As the Supreme Court reviewed the merits of the plaintiff's arguments, the court, in effect, granted reargument and adhered to its original determination. Therefore, the order made upon reargument is appealable (see Garieri v. International Bus. Machs., 275 A.D.2d 730).

The plaintiff failed to demonstrate that the court misapprehended any of the relevant facts that were before it or misapplied any controlling principle of law (see Pro Brokerage v. Home Ins. Co., 99 A.D.2d 971). Therefore, the court properly adhered to its prior determination granting the defendant's motion pursuant to CPLR 3126 to dismiss the complaint. The plaintiff clearly disobeyed the court's conditional order, and, by her willful conduct, frustrated disclosure (see Cronin v. Perry, 269 A.D.2d 351; Arcuri Sons v. Alfonsi, 242 A.D.2d 313).

FLORIO, J.P., FEUERSTEIN, FRIEDMANN and RIVERA, JJ., concur.