Kirby v. Suburban Electrical Engineers Contractors, Inc.

Appeal from an order of the Supreme Court, Seneca County (Dennis F. Bender, A.J.), entered March 12, 2010 in a personal injury action. The order, insofar as appealed from, granted in part plaintiffs’ motion for leave to renew and upon renewal denied the cross motion of defendant Suburban Electrical Engineers Contractors, Inc. for summary judgment. It is hereby ordered that the order insofar as appealed from is reversed on the law without costs and plaintiffs’ motion is denied. Memorandum: Supreme Court erred in granting that part of plaintiffs’ motion seeking leave to renew their opposition to the [1381] cross motion of defendant Suburban Electrical Engineers Contractors, Inc. (Suburban) for summary judgment dismissing the amended complaint against it and, upon renewal, denying the cross motion. Although a court has discretion to “grant renewal, in the interest of justice, upon facts [that] were known to the movant[s] at the time the original motion was made” (Tishman Constr. Corp. of N.Y. v City of New York, 280 AD2d 374, 376 [2001]), it may not exercise that discretion unless the movants establish a “reasonable justification for the failure to present such facts on the prior motion” (CPLR 2221 [e] [3]; see Robinson v Consolidated Rail Corp., 8 AD3d 1080 [2004]; Greene v New York City Hous. Auth., 283 AD2d 458 [2001]). Here, plaintiffs failed to demonstrate that their purported new evidence was not in existence or not available at the time of Suburban’s cross motion (see Patel v Exxon Corp., 11 AD3d 916 [2004]). In support of their motion for leave to renew, plaintiffs submitted the affidavits of two employees of International Paper, where the machine that caused the injury at issue was located. We conclude, however, that the information presented in those affidavits could have been discovered and presented earlier with due diligence (see Ford v Lasky, 300 AD2d 536 [2002]). Indeed, the evidence submitted in support of the motion for leave to renew “was within the purview of plaintiffis’] knowledge at the time” of Suburban’s cross motion (Tibbits v Verizon N.Y., Inc., 40 AD3d 1300, 1303 [2007]). The record establishes that a private investigator for plaintiffs met with one of those employees, Daniel Scharrett, in 2006 and obtained a statement from him, ostensibly in the form of an affidavit. Although the court concluded that Scharrett’s statement was not in admissible form because it was not properly sworn, Scharrett was known to plaintiffs and available to speak to their investigator in 2006. Plaintiffs filed a note of issue in August 2008, indicating their readiness for trial. Plaintiffs thereafter requested that the investigator locate Scharrett for the purpose of deposing him or to subpoena him for trial. The dissent’s reliance upon De Cicco v Longendyke (37 AD3d 934 [2007]) is misplaced. Here, plaintiffs had already secured a purported affidavit from Scharrett prior to Suburban’s cross motion and did not submit an affidavit attesting to their efforts to obtain additional information from Scharrett for the purpose of defeating the cross motion. All concur except Fahey, J., who dissents and votes to affirm in the following memorandum.