Weiss v. G & S Management Corp.

In an action to recover damages for wrongful death and pain and suffering, the defendants appeal from an order of the Supreme Court, Queens County (Zelman, J.), dated August 15, 1988, which denied renewal of their motion for summary judgment dismissing the complaint. Ordered that the order is affirmed, with costs. The defendants contend that the trial court abused its discretion in determining that the plaintiff’s stipulation of settlement in a related action did not constitute new evidence warranting consideration of its renewed motion for summary judgment. Although the trial court erred in holding that no new evidence was presented, it correctly denied summary judgment. We find that the defendants have failed to establish a prima facie entitlement to such relief (see, Zuckerman v City of New York, 49 NY2d 557; Fox v Wyeth Labs., 129 AD2d 611). Bracken, J. P., Rubin, Eiber, Rosenblatt and Miller, JJ., concur.