| Kirby v Suburban Elec. Engrs. Contrs., Inc. |
| 2011 NY Slip Op 02550 [83 AD3d 1380] |
| April 1, 2011 |
| Appellate Division, Fourth Department |
| Charles R. Kirby et al., Respondents, v Suburban ElectricalEngineers Contractors, Inc., Appellant, et al., Defendants. |
—[*1] Anthony F. Endieveri, Camillus, for plaintiffs-respondents.
Appeal from an order of the Supreme Court, Seneca County (Dennis F. Bender, A.J.),entered March 12, 2010 in a personal injury action. The order, insofar as appealed from, grantedin part plaintiffs' motion for leave to renew and upon renewal denied the cross motion ofdefendant Suburban Electrical Engineers Contractors, Inc. for summary judgment.
It is hereby ordered that the order insofar as appealed from is reversed on the law withoutcosts and plaintiffs' motion is denied.
Memorandum: Supreme Court erred in granting that part of plaintiffs' motion seeking leaveto renew their opposition to the cross motion of defendant Suburban Electrical EngineersContractors, Inc. (Suburban) for summary judgment dismissing the amended complaint against itand, upon renewal, denying the cross motion. Although a court has discretion to "grant renewal,in the interest of justice, upon facts [that] were known to the movant[s] at the time the originalmotion was made" (Tishman Constr. Corp. of N.Y. v City of New York, 280 AD2d 374,376 [2001]), it may not exercise that discretion unless the movants establish a "reasonablejustification for the failure to present such facts on the prior motion" (CPLR 2221 [e] [3]; see Robinson v Consolidated RailCorp., 8 AD3d 1080 [2004]; Greene v New York City Hous. Auth., 283 AD2d458 [2001]). Here, plaintiffs failed to demonstrate that their purported new evidence was not inexistence or not available at the time of Suburban's cross motion (see Patel v Exxon Corp., 11 AD3d916 [2004]). In support of their motion for leave to renew, plaintiffs submitted the affidavitsof two employees of International Paper, where the machine that caused the injury at issue waslocated. We conclude, however, that the information presented in those affidavits could havebeen discovered and presented earlier with due diligence (see Ford v Lasky, 300 AD2d536 [2002]). Indeed, the evidence submitted in support of the motion for leave to renew "waswithin the purview of plaintiff[s'] knowledge at the time" of Suburban's cross motion (Tibbits v Verizon N.Y., Inc., 40 AD3d1300, 1303 [2007]). The record establishes that a private investigator for plaintiffs met withone of those employees, Daniel Scharrett, in 2006 and obtained a statement from him, ostensiblyin the form of an affidavit. Although the court concluded that Scharrett's statement was not inadmissible [*2]form because it was not properly sworn, Scharrettwas known to plaintiffs and available to speak to their investigator in 2006. Plaintiffs filed a noteof issue in August 2008, indicating their readiness for trial. Plaintiffs thereafter requested that theinvestigator locate Scharrett for the purpose of deposing him or to subpoena him for trial. Thedissent's reliance upon De Cicco vLongendyke (37 AD3d 934 [2007]) is misplaced. Here, plaintiffs had already secured apurported affidavit from Scharrett prior to Suburban's cross motion and did not submit anaffidavit attesting to their efforts to obtain additional information from Scharrett for the purposeof defeating the cross motion.
All concur except Fahey, J., who dissents and votes to affirm in the following memorandum.
Fahey, J. (dissenting). I respectfully dissent. I cannot agree with the majority that SupremeCourt erred in granting that part of plaintiffs' motion seeking leave to renew their opposition tothe cross motion of defendant Suburban Electrical Engineers Contractors, Inc. (Suburban) forsummary judgment dismissing the amended complaint against it. I therefore would affirm as amatter of law.
This appeal arises from a November 10, 2004 incident in which Charles R. Kirby (plaintiff)was injured during the course of his employment with International Paper at one of its plants.The accident occurred after plaintiff lifted a safety gate on a "slitter" machine (hereafter, slitter)on a production line containing knives and arbors that cut cardboard to a certain length and widthbefore it was stacked and prepared for shipping. The slitter should have stoppedrunning when the safety gate was lifted, but it did not. Plaintiff, unaware of the malfunction ofthe slitter, put his left hand into that machine to unclog a significant cardboard jam in the trimchute, and one of the arbors cut off most of that hand.
In October 2004, shortly before the accident, a "knife and stacker" device (hereafter, stacker)was installed on the same production line as the slitter by Suburban and defendants MarquipWard United, LLC "and/or" Marquip Ward United, Inc. (collectively, Marquip defendants).Suburban assembled and ran the wiring for the stacker, while the Marquip defendants completedthe "technical work" by "working out the bugs to the machine" and making it "run again." Shortlyafter the accident, an investigation confirmed that the slitter continued to operate when the safetygate was raised, which was an obvious malfunction inasmuch as the safety gate is designed tostop the slitter within a few seconds of the time at which it is opened.
Plaintiffs subsequently commenced this action seeking damages for injuries sustained byplaintiff in the accident. Plaintiffs filed a note of issue in August 2008, and Suburban moved tostrike, inter alia, the note of issue. The court denied the motion but, inter alia, ordered thatdefendants were entitled to depose Daniel Scharrett, one of plaintiff's coworkers, within 60 daysof December 24, 2008 and that any additional depositions were also to be completed within thattime period.
Scharrett was never deposed, and the Marquip defendants and Suburban eventually movedand cross-moved, respectively, for summary judgment dismissing the amended complaint. Thecourt granted the motion and cross motion in June 2009, determining that, in opposition to themotion and cross motion, plaintiffs failed to raise a triable issue of fact whether defendantscreated or exacerbated the dangerous condition, i.e., the faulty safety gate, by improperlyconnecting the wires to the circuit box attached to the slitter.
Plaintiffs moved for leave to renew their opposition to the motion and cross motion inAugust 2009. In support of their motion, plaintiffs submitted the affidavit of a privateinvestigator who explained why Scharrett had never been deposed. According to that private[*3]investigator, Scharrett traveled with a carnival. Theinvestigator had located Scharrett in North Carolina in October 2006, but plaintiffs' attorney wasnot present and thus did not interview him at that time. The investigator unsuccessfully searchedfor Scharrett for several months beginning in approximately November 2008 for the purpose offacilitating his deposition and finally located him subsequent to the determination of thesummary judgment motion and cross motion through the use of an Internet search engine forpublic records databases.
Plaintiffs' attorney thereafter met with Scharrett and, as a result of that meeting, Scharrettexecuted an affidavit that led to further conferences between plaintiffs and their expert engineer,as well as contact between plaintiffs' attorney and other coworkers of plaintiff. The furtherinvestigation that flowed from those meetings produced evidence that the negligence ofSuburban in the installation of the stacker and incidental rewiring of parts of the production linecaused the accident.
Plaintiffs submitted the foregoing evidence in support of their motion for leave to renew. Thecourt granted that part of the motion with respect to Suburban's cross motion and, upon renewal,denied the cross motion. In doing so, the court properly relied on De Cicco v Longendyke (37 AD3d934 [2007]). In De Cicco, the Third Department determined that the court did notabuse its discretion in granting the plaintiff's motion to renew his opposition to the defendant'smotion for summary judgment, concluding that the plaintiff was reasonably justified in failing topresent certain evidence in opposition to the motion because of the relocation of the nonpartywitness from whom that evidence was obtained (id. at 935).
As the Third Department declined to do in De Cicco, we should not interfere with thecourt's proper exercise of discretion in determining the motion for leave to renew. Evenassuming, arguendo, that the evidence discovered after plaintiffs' investigator located Scharrett in2009 could have been presented at the time Suburban's cross motion was made (cf. Foxworth v Jenkins, 60 AD3d1306 [2009]), I cannot agree with the majority that plaintiffs failed to offer a reasonablejustification for their failure to submit that evidence in opposition to the cross motion (see Matter of Lutheran Med. Ctr. vDaines, 65 AD3d 551, 553 [2009], lv denied 13 NY3d 712 [2009]; seegenerally CPLR 2221 [e] [3]). The record establishes that Scharrett's work with a travelingcarnival limited plaintiffs' ability to interview him carefully and completely during the earlystages of this case and that plaintiffs reinvigorated their efforts to contact Scharrett well beforethe motion and cross motion for summary judgment were filed. Although an Internet search ledto the discovery of Scharrett's whereabouts in relatively short order, that technology, while nolonger nascent, is far from established, and the apparent lack of familiarity and expertise ofplaintiffs' attorney with that science does not support denial of the renewal motion.
Consequently, in view of Scharrett's transient lifestyle, I cannot conclude that the courtabused its discretion in determining that plaintiffs were reasonably justified in failing to presentthe evidence that flowed from the 2009 meeting with Scharrett in opposition to Suburban's crossmotion (see De Cicco, 37 AD3d at 935). Motions for leave to renew are addressed to thesound discretion of the court, and the majority's decision here is contrary to the ends of justiceand incompatible with the judicial flexibility that CPLR 2221 is intended to provide (seeMem of NY St Bar Assn Comm on CPLR, Bill Jacket, L 1999, ch 281, at 6-7; see e.g. Hamlet at Willow Cr. Dev. Co.,LLC v Northeast Land Dev. Corp., 64 AD3d 85, 100 [2009], lv dismissed 13NY3d 900 [2009]; Matter of Gold vGold, 53 AD3d 485, 487 [2008]; see generally Garland v RLI Ins. Co., 79 AD3d 1576, 1577-1579[2010, Sconiers, J., dissenting]). Indeed, "[t]he fundamental and overriding purpose of CPLR2221 should be to give courts and litigants every reasonable opportunity to obtain the legallycorrect and just result based on the merits of the case" (Garland, 79 AD3d at 1578-1579[Sconiers, J., dissenting]).
Finally, I conclude that the court properly denied Suburban's cross motion for summary [*4]judgment upon renewal. Although " 'a contractual obligation,standing alone, will generally not give rise to tort liability in favor of a third party' " (Cumbo v Dormitory Auth. of State ofN.Y., 71 AD3d 1513, 1514 [2010], quoting Espinal v Melville Snow Contrs., 98NY2d 136, 138 [2002]; see Church v Callanan Indus., 99 NY2d 104, 111 [2002]), " 'adefendant who undertakes to render services and then negligently creates or [exacerbates] adangerous condition may be liable for any resulting injury' " (Cumbo, 71 AD3d at 1514,quoting Espinal, 98 NY2d at 141-142). Here, Suburban submitted evidence that it did notwork on the slitter and thus met its initial burden of establishing that it did not create orexacerbate the allegedly dangerous condition (see generally Espinal, 98 NY2d at141-142). In opposition to the cross motion, however, plaintiffs raised a triable issue of factwhether Suburban created the allegedly dangerous condition giving rise to plaintiff's injury(see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).Present—Scudder, P.J., Fahey, Peradotto, Lindley and Martoche, JJ.