| Jones v 636 Holding Corp. |
| 2010 NY Slip Op 03768 [73 AD3d 409] |
| May 4, 2010 |
| Appellate Division, First Department |
| Duvaugh Jones, an Infant, by His Mother and Natural Guardian,Shinillis Cline, et al., Respondents, v 636 Holding Corp. et al.,Appellants. |
—[*1] Gentile & Associates, New York (Laura Gentile of counsel), for respondents.
Order, Supreme Court, Bronx County (Patricia Anne Williams, J.), entered October 8, 2009,which denied defendants' motion for summary judgment dismissing the complaint, unanimouslyaffirmed, without costs.
Successive motions for summary judgment should not be entertained without a showing ofnewly discovered evidence or other sufficient justification (see Phoenix Four v Albertini,245 AD2d 166 [1997]). In this action for personal injury resulting from a courtyard shooting, the"new" evidence presented on the follow-up motion for summary relief, consisting of an affidavitfrom a forensic pathologist, was clearly available to the movants earlier, and thus "should berejected for failure to show due diligence in attempting to obtain the statement before thesubmission of the prior motion" (Taub vArt Students League of N.Y., 63 AD3d 630, 631 [2009]).
Even considering the substance of this later motion, defendants failed to establishentitlement to judgment on the issue of liability. Defendants contend that the court should havecredited the opinion of their expert witness that despite the infant plaintiff's deposition accountof what happened, the forensic evidence precluded the possibility he could have been shot byany intruders on their property. However, plaintiffs produced, in opposition to the motion, an[*2]affidavit from their own forensic pathologist disputing theconclusion offered by defendants' expert. Concur—Gonzalez, P.J., Tom, Renwick,DeGrasse and Abdus-Salaam, JJ.