Tara C. Gamby et al., Respondents, v. John A. Pulitano, Appellant, et al., Defendant

Tara C. Gamby et al., Respondents, v John A. Pulitano, Appellant, et al., Defendant. (Appeal No. 1.) [653 NYS2d 904] [MAJORITY] —Order unanimously affirmed with costs. Memorandum: Supreme Court did not abuse its discretion in granting plaintiffs’ motion for reargument and renewal. Plaintiffs submitted additional material facts relating to the prior order of preclusion and asserted that, in granting summary judgment, the court misapplied the law (see, Foley v Roche, 68 AD2d 558, 567). We also conclude that the court did not abuse its discretion in vacating the order of preclusion, nor did it err in denying summary judgment based upon the vacatur of that order of preclusion. The court properly dismissed defendant’s motion to vacate the July 31, 1996 order upon the ground that plaintiffs, by failing to submit an order within 60 days, had abandoned their motion to reargue and renew. The court’s decision did not direct the submission or settlement of an order on notice (see, Funk v Barry, 89 NY2d 364). (Appeal from Order of Supreme Court, Monroe County, Ark, J.—Reargument.) Present—Denman, P. J., Pine, Lawton, Balio and Boehm, JJ.