Opinion
2001-06438, 2002-03489
Argued March 14, 2002.
May 8, 2002.
In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Orange County (Owen, J.), dated June 7, 2001, which granted the plaintiffs' motion for summary judgment on the issue of liability. The appeal brings up for review so much of an order of the same court, dated August 10, 2001, as denied the defendants' motion for leave to renew (see CPLR 5517[b]).
McCabe Mack, LLP, Poughkeepsie, N.Y. (Kristin Braga and Christina M. Bookless of counsel), for appellants.
Subin Associates, P.C. (Herbert S. Subin and Pollack, Pollack, Isaac Decicco, New York, N.Y. [Brian J. Isaac] of counsel), for respondents.
Before: SANTUCCI, J.P., ALTMAN, TOWNES, CRANE, JJ.
ORDERED that the appeal from the order dated June 7, 2001, is affirmed; and it is further,
ORDERED that the order dated August 10, 2001, is affirmed insofar as reviewed; and it is further,
ORDERED that the respondents are awarded one bill of costs.
The plaintiffs established their prima facie entitlement to judgment as a matter of law on the issue of liability based upon the verified complaint, the affidavit of the plaintiff Moshe Falkowitz, and a copy of the police accident report (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851; Zuckerman v. City of New York, 49 N.Y.2d 557). The affirmation of the defendants' attorney was insufficient to raise a question of fact because she "demonstrated no personal knowledge of the manner in which the accident occurred" (Zuckerman v. City of New York, 49 N.Y.2d 557, 563). Moreover, the defendants' attorney failed to demonstrate that "facts essential to justify opposition may exist but cannot then be stated" (CPLR 3212[f]) and, thus, the defendants were not entitled to denial of the motion for summary judgment on the ground that discovery had not taken place (see Leggio v. County of Nassau, 281 A.D.2d 518, 519; Lightfoot v. City of New York, 279 A.D.2d 457, 458; Jones v. Gameray, 153 A.D.2d 550, 551).
The Supreme Court correctly denied the defendants' motion for leave to renew. The defendants failed to establish reasonable justification as to why the facts offered in the affidavit of the defendant Joseph Peters were not submitted on the original motion (see CPLR 2221[e]; Homes Sav. Bank v. Watersedge Estates, 288 A.D.2d 266; McNeill v. Sandiford, 270 A.D.2d 467; Colonial Penn Ins. Co. v. Nevelus, 292 A.D.2d 381.
SANTUCCI, J.P., ALTMAN, TOWNES and CRANE, JJ., concur.