Schoen v. Rochester Gas & Electric, Inc.

Order unanimously affirmed without costs. Memorandum: Supreme Court did not abuse its discretion in denying the motion of plaintiff to renew his prior motion for summary judgment. Even assuming, arguendo, that testimony from examinations before trial conducted after the prior motion was denied constitutes newly discovered evidence, we conclude that the court properly determined that the newly discovered evidence did not warrant a different result (see, Laxrand Constr. Corp. v R.S.C.A. Realty Corp., 135 AD2d 685, 686, lv denied 71 NY2d 804; Matter of Banow v Simins, 53 AD2d 542). That evidence conflicts with an affidavit submitted in opposition to the prior motion, presenting credibility issues that render summary judgment inappropriate (see, Capelin Assocs. v Globe Mfg. Corp., 34 NY2d 338, 341; Mickelson v Babcock, 190 AD2d 1037, 1038). (Appeal from Order of Supreme Court, Onondaga County, Murphy, J.—Renewal.) Present— Green, J. P., Lawton, Wisner, Balio and Boehm, JJ.