Summary
In Jones v 636 Holding Corp., supra, the Court held that an expert affidavit was not "new" evidence warranting consideration of a successive summary judgment motion because the affidavit was available to the movants earlier, and thus "should be rejected for failure to show due diligence in attempting to obtain the statement before the submission of the prior motion" (internal quotation marks omitted).
Summary of this case from Genesis Merch. Partners v. GilbrideOpinion
No. 2691.
May 4, 2010.
Order, Supreme Court, Bronx County (Patricia Anne Williams, J.), entered October 8, 2009, which denied defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis Fishlinger, Uniondale (Gregory A. Cascino of counsel), for appellants.
Gentile Associates, New York (Laura Gentile of counsel), for respondents.
Before: Gonzalez, P.J., Tom, Renwick, DeGrasse and Abdus-Salaam, JJ.
Successive motions for summary judgment should not be entertained without a showing of newly discovered evidence or other sufficient justification ( see Phoenix Four v Albertini, 245 AD2d 166). In this action for personal injury resulting from a courtyard shooting, the "new" evidence presented on the follow-up motion for summary relief, consisting of an affidavit from a forensic pathologist, was clearly available to the movants earlier, and thus "should be rejected for failure to show due diligence in attempting to obtain the statement before the submission of the prior motion" ( Taub v Art Students League of N.Y., 63 AD3d 630, 631).
Even considering the substance of this later motion, defendants failed to establish entitlement to judgment on the issue of liability. Defendants contend that the court should have credited the opinion of their expert witness that despite the infant plaintiffs deposition account of what happened, the forensic evidence precluded the possibility he could have been shot by any intruders on their property. However, plaintiffs produced, in opposition to the motion, an affidavit from their own forensic pathologist disputing the conclusion offered by defendants' expert.