— In a wrongful death action, the appeals are (1) from an order of the Supreme Court, Suffolk County (Weissman, J.), dated July 13, 1982, which granted plaintiff’s motion for an extension of time in which to move for leave to reargue the denial of a previous motion to set aside the jury verdict in favor of appellants and (2) from a further order of the same court, dated November 8, 1982, which granted plaintiff’s motion for leave to reargue, which was, in effect, a motion to renew, and, upon renewal, set aside the verdict and granted a new trial. Orders affirmed, with one bill of costs. On the afternoon of February 8, 1979, plaintiff’s decedent, in an attempt to cross a busy intersection, was struck and killed by a vehicle operated by defendant La Cour. The decedent, who had been standing on the yellow line in the center of the road, ran out into the lane of traffic after defendant Katz had stopped the vehicle which he was driving and waved the decedent on. La Cour’s vehicle came up on the right-hand side of Katz’ van and struck the decedent as he proceeded across the roadway. The jury returned a verdict in favor of both defendants and their respective employers. Immediately after the verdict was rendered, plaintiff’s counsel moved to set it aside on the ground that it was against the weight of the evidence. Said motion was denied by the trial court. After the entry of judgment on April 15, 1982, plaintiff’s new attorneys filed a timely notice of appeal. That appeal apparently has not yet been perfected. Plaintiff also moved for permission to extend the time to reargue the denial of plaintiff’s posttrial motion. This motion was granted by order dated July 13, 1982. Thereafter, plaintiff purportedly moved for reargument, but the motion was based on facts not previously brought to the attention of the court. In the interest of justice, we treat plaintiff’s motion as an application for leave to renew and grant renewal. While a motion for renewal is generally based upon newly discovered facts, we exercise our discretion to grant renewal upon facts known to the movant at the time of the original motion (see Esa v New York Prop. Ins. Underwriting Assn., 89 AD2d 865). The trial court properly concluded that the verdict was affected by the fact that the jurors had not been properly instructed that the plaintiff in a wrongful death action is not held to as high a degree of proof as is an injured plaintiff who can himself describe the occurrence (Noseworthy v City of New York, 298 NY 76). Accordingly, the verdict was properly set aside and a new trial granted in the interest of justice (CPLR 4404, subd [al). Lazer, Weinstein and Boyers, JJ., concur.