Innovative Chemical Corp. v. Howe Plastics & Chemical Companies, Inc.

Order unanimously affirmed with costs. Memorandum: [966] Supreme Court properly denied defendant’s motion for leave to renew its prior consolidation motion and plaintiffs summary judgment motion. The renewal was based on evidence existing at the time of the prior motion, and defendant has failed to provide a valid excuse for not submitting the additional evidence in the original application (see, Monroe Dewey Partners v MDR Dev., 159 AD2d 949; Foley v Roche, 68 AD2d 558, 568). In addition, we find that Supreme Court properly granted plaintiffs motion for summary judgment. Plaintiff has submitted evidence in admissible form demonstrating its entitlement to judgment as a matter of law. Defendant’s opposition consists of averments made by its attorney which were not made on personal knowledge. They have no probative value (see, Matter of Johnson v Sharpe, 66 AD2d 955). Finally, defendant has failed to sustain its burden of demonstrating that the Erie County action and the New York County action contain common issues of law and fact, thus making consolidation inappropriate (see, CPLR 602 [a]). (Appeal from order of Supreme Court, Erie County, Flaherty, J.—change of venue.) Present—Boomer, J. P., Green, Pine, Davis and Lowery, JJ.