Taub v Art Students League of N.Y.

2009 NY Slip Op 05385 [63 AD3d 630]

June 30, 2009

Appellate Division, First Department

As corrected through Wednesday, August 5, 2009

Nuri Taub, Appellant, v The Art Students League of NewYork, Defendant, and Americon Construction, Inc., Respondent.

—[*1]Edward T. Chase, Mount Vernon, for appellant.

Zichello & McIntyre, LLP, New York (Ann Teresa McIntyre of counsel), forrespondent.

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered June 9, 2008,which granted plaintiff's motion to renew (denominated by the court as one to reargue) a priororder granting defendants' motion for summary judgment dismissing the complaint, and, uponrenewal, adhered to the prior order, deemed to have denied renewal, and, so considered,unanimously affirmed, without costs.

While the motion court incorrectly denominated plaintiff's motion as one to reargue, itclearly treated it as one to renew, describing the evidentiary material submitted by plaintiff onthe motion, a witness statement, and rejecting it for lack of an explanation why it was notsubmitted on defendants' prior motion for summary judgment dismissing the complaint for lackof evidence of, inter alia, the cause of plaintiff's fall (see CPLR 2221 [e] [2], [3];Dupont v Joedon & Co., 107 AD2d 369, 373 [1985]). In any event, the new evidence,however, should be rejected for failure to show due diligence in attempting to obtain thestatement before the submission of the prior motion (see Rubinstein v Goldman, 225AD2d 328, 328-329 [1996], lv denied 88 NY2d 815 [1996]; Elson v Defren, 283AD2d 109, 113 [2001]). The hearsay statement of plaintiff's attorney describing his investigator'sefforts to locate the witness lacks probative value. Even if we were to accept the attorney'sstatement, we would find that the investigator's efforts fell short of due diligence. Moreover,were we to accept the witness statement, it would not change the prior determination that there isno evidence probative of what caused plaintiff to trip and fall (CPLR 2221 [e] [2]). The witnessdoes not identify plaintiff as the person who fell, stating only [*2]that he saw "a woman" fall, or specify when he saw the woman fall,stating only that it happened in the "fall of 2003." Concur—Gonzalez, P.J., Friedman,Moskowitz, Renwick and Freedman, JJ.