You are here: / / PLAINTIFF’S MOTION TO RENEW HIS SUMMARY JUDGMENT MOTION SHOULD NOT...
, ,

PLAINTIFF’S MOTION TO RENEW HIS SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED; NO “NEW FACTS” WERE DEMONSTRATED (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court in this Labor Law 240(1) action, determined plaintiff’s motion to renew his summary judgment motion should not have been granted. Plaintiff was attempting to disassemble a freezer when the freezer roof collapsed and he fell to the floor:

Pursuant to CPLR 2221, a motion for leave to renew “shall be based upon new facts not offered on the prior motion that would change the prior determination” and “shall contain reasonable justification for the failure to present such facts on the prior motion” … . In his motion for leave to renew and reargue, plaintiff sought to admit a supplemental expert affidavit in which plaintiff’s expert sought to clarify that accessing the freezer’s ceiling was an essential task of disassembly. Plaintiff averred that this information was not proffered before because he was not on notice that he needed to address the different tasks required for disassembly. However, our review of the original motion papers reveals that, not only did the expert’s original affidavit briefly address the need for plaintiff to climb on top of the freezer, but also that [defendant’s] affirmations in opposition were sufficient to put plaintiff on notice that the necessity of plaintiff’s work on the ceiling would be at issue … . Additionally, as plaintiff had already retained an expert, there was nothing preventing plaintiff from submitting additional evidence in reply to [defendant’s] affirmations in opposition, prior to the court’s original determination … .Therefore, Supreme Court improperly granted plaintiff’s motion to renew, and plaintiff’s supplemental expert affidavit should not be considered on summary judgment … . Burgos v Darden Rests., Inc., 2025 NY Slip Op 00009, Third Dept 1-2-25

Practice Point:  A motion to renew a summary judgment motion must be based upon new facts which could not have been addressed in the initial motion, not the case here.

You might also like
THE COMMISSIONER OF AGRICULTURE AND MARKETS HAD JURISDICTION OVER THE DISPUTE BETWEEN THE TOWN AND A FARM IN WHICH THE TOWN ALLEGED THE FARM WAS RUNNING A COMMERCIAL MULCHING OPERATION IN VIOLATION OF THE TOWN CODE; THE COMMISSIONER PROPERLY DETERMINED THE FARM WAS NOT VIOLATING THE TOWN CODE (THIRD DEPT).
“For Cause” Challenge to Juror Who Socialized with District Attorney Should Have Been Granted—Concept of “Implied Bias” Explained
THE ORDER OF PROTECTION WAS NOT SUFFICIENTLY TIED TO THE BEST INTERESTS OF THE CHILD IN THIS NEGLECT PROCEEDING AND SHOULD HAVE BEEN VACATED, ISSUE CONSIDERED ON APPEAL AS AN EXCEPTION TO THE MOOTNESS DOCTRINE (THIRD DEPT).
DRIVER FOR A MEDICAL DELIVERY SERVICE WAS AN EMPLOYEE ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS, NOTWITHSTANDING THE DRIVER’S CONTRACT WITH A THIRD PARTY PAYROLL COMPANY.
VALID EVIDENTIARY ISSUES WERE NOTICED BY APPELLATE COUNSEL BUT WERE NOT ADDRESSED AT TRIAL, THE STATE’S VERDICT IN THIS MALICIOUS PROSECUTION, FALSE ARREST AND UNLAWFUL IMPRISONMENT ACTION AFFIRMED (THIRD DEPT).
Nature of a “Turn-Key” or “Design-Build” Contract Explained—Three-Year Statute of Limitations for Malpractice Applied to Defendant Architects Who Were Engaged Solely to Design, Not Build, the Renovations
ALTHOUGH PLAINTIFF-SELLER MAY HAVE THOUGHT THE PARCEL OF REAL PROPERTY SHE SOLD WAS SMALLER THAN IT ACTUALLY WAS, DEFENDANT-BUYER WAS NEVER UNDER THAT IMPRESSION; THE COMPLAINT ALLEGING THE DEAL SHOULD BE RESCINDED BASED ON MUTUAL MISTAKE SHOULD HAVE BEEN DISMISSED (THIRD DEPT).
Right to Cross-Examine Witnesses in Quasi-Judicial Administrative Hearing

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

REMOVAL OF THE CHILDREN FROM MOTHER’S CARE WITHOUT NOTICE DEPRIVED MOTHER... THE PUBLIC HEALTH LAW DOES NOT CREATE A PRIVATE RIGHT OF ACTION AGAINST “ASSISTED...