| Sealey v Westend Gardens Hous. Dev. Fund Co., Inc. |
| 2012 NY Slip Op 05509 [97 AD3d 653] |
| July 11, 2012 |
| Appellate Division, Second Department |
| Brian Sealey, Appellant, v Westend Gardens HousingDevelopment Fund Company, Inc., et al., Defendants/Third-Party Plaintiffs-Respondents.Sterling Elevator Corp., Third-Party Defendant-Respondent. |
—[*1] Thomas D. Hughes, New York, N.Y. (Richard C. Rubinstein of counsel), fordefendants/third-party plaintiffs-respondents. Keller, O'Reilly & Watson, P.C., Woodbury, N.Y. (Laurence G. McDonnell and Jessica L.Darrow of counsel), for third-party defendant-respondent.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by hisbrief, from so much of a judgment of the Supreme Court, Kings County (Schmidt, J.), enteredFebruary 18, 2011, as, upon an order of the same court dated November 16, 2009, denying theplaintiff's motion, inter alia, in effect, pursuant to CPLR 5015 to vacate so much of a prior orderof the same court dated July 5, 2005, as granted that branch of the defendants' motion which wasfor summary judgment dismissing the complaint insofar as asserted against the defendantBorough Park Housing Development Fund Company, Inc., is in favor of the defendant BoroughPark Housing Development Fund Company, Inc., and against him, in effect, dismissing thecomplaint insofar as asserted against that defendant.
Ordered that the judgment is affirmed insofar as appealed from, with one bill of costs to thedefendants and the third-party defendant appearing separately and filing separate briefs.
In 1999, the plaintiff was injured when he attempted to ride his electric-powered wheelchairinto an elevator that was misleveled by five to six inches. On the plaintiff's second attempt toenter the elevator, the wheelchair flipped over backwards, ejecting the plaintiff.
On the plaintiff's prior appeal, by decision and order dated February 20, 2007, this Courtaffirmed so much of a Supreme Court order dated July 5, 2005 (hereinafter the 2005 order), asgranted that branch of the defendants' motion which was for summary judgment dismissing thecomplaint insofar as asserted against the defendant Borough Park Housing Development FundCompany, Inc. (hereinafter Borough Park) (Sealey v West End Garden Dev. Fund Co., Inc., 37 AD3d 699[2007]). More than two years later, the plaintiff moved, inter alia, in effect, pursuant to CPLR5015 to vacate the 2005 order insofar as it awarded summary judgment to the defendant BoroughPark, on the grounds of newly discovered evidence (see CPLR 5015 [a] [2]) and "fraud,misrepresentation, or [*2]other misconduct of an adverse party"(CPLR 5015 [a] [3]). The new evidence consisted of an owner's operator and maintenancemanual, which reportedly was given to the plaintiff several years prior to the accident and reflectsa publication date of 1990. The plaintiff contended that the owner's manual submitted by thedefendants on their summary judgment motion was "bogus," as it was published after hisaccident. The plaintiff further claimed that, unlike the owner's manual submitted by thedefendants, the new evidence did not contain a warning not to drive over curbs or obstacles. TheSupreme Court denied the plaintiff's motion.
"[W]hile 'a court of original jurisdiction may entertain a motion to renew or to vacate a priororder or judgment on the ground of newly discovered evidence even after an appellate court hasaffirmed the original order or judgment . . . on [a] postappeal motion [to renew or tovacate] the [movant] bears a heavy burden of showing due diligence in presenting the newevidence to the Supreme Court in order to imbue the appellate decision with a degree of certainty'" (Estate of Essig v 5670 58 St. HoldingCorp., 66 AD3d 822, 822-823 [2009] [emphasis omitted], quoting Levitt v Countyof Suffolk, 166 AD2d 421, 422-423 [1990]).
Here, the plaintiff failed to meet his "heavy burden" of showing due diligence (Levitt vCounty of Suffolk, 166 AD2d at 423; see Andrews v New York City Hous. Auth., 90 AD3d 962 [2011];Sieger v Sieger, 51 AD3d 1004[2008]; CPLR 5015 [a] [2]). Likewise, the plaintiff unreasonably delayed in making his motionpursuant to CPLR 5015 (a) (3) (seeCiticorp Vendor Fin., Inc. v Island Garden Basketball, Inc., 27 AD3d 608 [2006];Sieger v Sieger, 51 AD3d at 1006). Accordingly, the Supreme Court properly denied theplaintiff's motion. Florio, J.P., Balkin, Chambers and Cohen, JJ., concur.