Opinion
July 10, 1967
Order of the Supreme Court, Kings County, dated July 5, 1966, reversed on the facts and in the exercise of discretion, with $10 costs and disbursements, and motion for new trial denied. The exercise of ordinary diligence by counsel for the defendant owners would have revealed the true condition of the sidewalk at all the times in question, including the incident of a previous fall. Such information should have been readily available from counsel's own clients. Counsel should have been prepared to offer such evidence at the trial. Such lack of diligence precludes the granting of a motion for a new trial based on newly discovered evidence ( Dignon v. New York City Tr. Auth., 24 A.D.2d 507; Travitzky v. Schamroth, 277 App. Div. 1018). Brennan, Acting P.J., Rabin, Hopkins, Benjamin and Nolan, JJ., concur.