Vardi v. Greenblatt

—Order of the Appellate Term of the Supreme Court, First Department, entered July 13, 1994, which affirmed an order of the Civil Court, New York County (Jay Dankberg, J.), entered February 9, 1993, denying defendant’s motion to renew and reargue with respect to a judgment of the same court entered November 12, 1992, awarding plaintiff, upon a prior grant of summary judgment, the sum of $16,402.81, unanimously affirmed, with costs. Defendant’s contention that the Civil Court "misapplied] relevant law by holding that the affirmation of [defendant’s] attorney was insufficient hearsay and by refusing to consider as admissible the attached documentary evidence” is without merit, since Judge Dankberg’s decision clearly indicates that defendant’s submissions were considered. Defendant never rebutted the presumption of negligence, because he failed to establish that the bailed diamond in question was one of the diamonds stolen during a burglary (Sun Yau Ko v Lincoln Sav. Bank, 99 AD2d 943, affd 62 NY2d 938). Accordingly, the Civil Court properly awarded plaintiff summary judgment for the value of the missing gem. Moreover, there was nothing "new” about the evidence belated submitted by defendant, which consisted of his cursory statement in an affidavit that easily could have been included with the original opposition papers. Concur—Rosenberger, J. P., Rubin, Kupferman, Asch and Williams, JJ.