| Pavlovich v Zimmet |
| 2008 NY Slip Op 03370 [50 AD3d 1364] |
| April 17, 2008 |
| Appellate Division, Third Department |
| Paul Z. Pavlovich et al., Respondents, v Jay Zimmet, Defendant,and Anne-Marie Garti, Appellant. |
—[*1] Maynard, O'Connor, Smith & Catalinotto, L.L.P., Albany (Michael T. Snyder of counsel), forrespondents.
Carpinello, J. Appeals (1) from an order of the Supreme Court (Coccoma, J.), entered May17, 2007 in Delaware County, which denied defendants' motion for summary judgmentdismissing the complaint, and (2) from an order of said court, entered August 14, 2007, whichdenied defendant Anne-Marie Garti's motion to extend time to seek leave to reargue.
The parties own adjacent property in the Town of Kortright, Delaware County. In thisRPAPL article 15 proceeding, plaintiffs seek a declaration that they are entitled to a 25-footright-of-way over a portion of property owned by defendant Anne-Marie Garti and further seek toenjoin Garti from maintaining a barrier over the right-of-way.[FN*]In a counterclaim, Garti seeks a [*2]declaration enjoiningplaintiffs from entering her land and, alternatively, in the event a valid easement exists, to limitsame to a 10-foot traveled path. Following an unsuccessful motion for summary judgment andthe completion of discovery, Garti, then proceeding pro se, made a successive motion forsummary judgment. The motion was denied on the ground that none of Garti's allegations werenew and that all the arguments could have been made in the first motion for summary judgment.A subsequent motion to reargue was denied as untimely and yet another motion to extend time toseek leave to reargue was also denied. Garti filed a notice of appeal from the order denying thesuccessive motion for summary judgment, as well as the subsequent order denying an extensionof time to seek leave to reargue.
We agree with Supreme Court's assessment that Garti's successive motion for summaryjudgment was made without a sufficient showing of newly-discovered evidence or sufficientcause (see e.g. Matter of Bronsky-GraffOrthodontics, P.C., 37 AD3d 946, 947 [2007]; Tuttle v McQuesten Co., 243AD2d 930, 931 [1997]; La Freniere v Capital Dist. Transp. Auth., 105 AD2d 517, 518[1984]). In support of the successive motion, Garti relied primarily on the affidavit and abstractsof title of a title agent who performed title searches on her behalf, as well as the affidavit, surveyand survey report of the same licensed surveyor utilized unsuccessfully in the initial motion.Such evidence was either submitted, or could have been submitted, with the initial motion andtherefore does not constitute newly-discovered evidence (see Matter of Bronsky-GraffOrthodontics, P.C., supra). Nor are we persuaded that the deposition testimony of eitherplaintiff yielded sufficiently new evidence to warrant reconsideration of summary judgment(see id.). In any event, upon our review of the record, we are satisfied that questions offact exist which preclude summary relief to Garti.
Cardona, P.J., Spain, Kavanagh and Stein, JJ., concur. Ordered that the orders are affirmed,without costs.
Footnote *: This action was originallycommenced against Garti and defendant Jay Zimmet, who owned the subject property as tenantsby the entirety. Zimmet has since died. Neither side takes issue with Supreme Court's holdingthat his death does not affect the merits of the case such that it can proceed without substitutionpursuant to CPLR 1015 (b).