Sarmiento v Ampex Casting Corp.
2019 NY Slip Op 02830 [171 AD3d 544]
April 16, 2019
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, May 29, 2019


[*1]
 Elsa Sarmiento, Respondent,
v
Ampex Casting Corporation et al., Appellants.

Gerstman Schwartz & Malito, LLP, Garden City (David M. Schwartz of counsel), for appellants.

Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered August 15, 2017, which denied defendants' motion to renew their prior CPLR 3216 motion to dismiss the complaint, unanimously affirmed, with costs.

We decline to consider defendants' argument that plaintiff's affidavit of merit is inadmissible because it was not supported by a translator's affidavit, since it is raised for the first time on appeal (see e.g Diarrassouba v Consolidated Edison Co. of N.Y. Inc., 123 AD3d 525 [1st Dept 2014]).

The court did not abuse its discretion in denying the motion to renew (see Central Amusement Intl. LLC v Lexington Ins. Co., 162 AD3d 452, 453 [1st Dept 2018]; CPLR 2221 [e]). Defendants' application lacks a sufficient factual or legal basis, and is an indirect attempt to challenge the truth of the allegations in the complaint, which is more appropriately left for at trial. Concur—Renwick, J.P., Gische, Kapnick, Kern, Moulton, JJ. [Prior Case History: 2017 NY Slip Op 31702(U).]