Opinion
October 24, 2000.
Matthew J. Zullo, for plaintiff-respondent.
Martin M. McGlynn, for defendant-respondent.
Stephanie A. Johnson, for defendant-appellant.
Tom, J.P., Mazzarelli, Ellerin, Lerner, Andrias, JJ.
Order, Supreme Court, New York County (Leland DeGrasse, J.), entered November 8, 1999, which upon the grant of plaintiff's motion to renew, denied the previously granted motion of John Capelli Erectors for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.
Renewal was properly granted since the new evidence upon which plaintiff relies, an affidavit by a witness to the accident for which recovery is sought, was not available at the time of the original motion, the affiant having then refused to provide an affidavit. Also proper was the denial of defendant Capelli Erectors' previously granted summary judgment motion. The newly submitted affidavit raises triable issues as to whether the boom truck whose supporting leg allegedly encroached upon the sidewalk and thereby caused the affiant to trip and fall, striking plaintiff and precipitating his injury, was, in fact, the truck of Capelli Erectors. Nor did the motion to renew advance a different theory of liability.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.