Cohen v. Otis Elevator, Inc.

Order, Supreme Court, New York County (Lorraine Miller, J.), entered on or about May 23, 1996, which granted plaintiffs’ motion to renew and reargue a prior order denying renewal and reargument of a prior order denying plaintiffs’ motion to restore this personal injury action to the trial calendar, and thereupon restored the action to the calendar, unanimously affirmed, without costs. Even though the evidence submitted by plaintiffs in support of the motion was available at the time they first moved to restore the action to the calendar, the IAS Court properly considered it, inasmuch as it conclusively established that plaintiffs’ first motion was timely made within one year, which was plaintiffs’ position on their first motion to renew and reargue albeit with proof deemed inadequate by the IAS Court (see, Martinez v Hudson Armored Car & Courier, 201 AD2d 359, 360-361). Together with plaintiffs’ affidavit of merit and the material they had submitted on their prior motions, the necessary showing for restoring an action to the calendar was made. Concur—Sullivan, J. P., Rosenberger, Wallach and Tom, JJ.