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Jones v. 636 Holding Corp.

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


May 4, 2010

DUVAUGH JONES, AN INFANT BY HIS MOTHER AND NATURAL GUARDIAN, SHINILLIS CLINE, ET AL., PLAINTIFFS-RESPONDENTS,
v.
636 HOLDING CORP., ET AL., DEFENDANTS-APPELLANTS.

Order, Supreme Court, Bronx County (Patricia Anne Williams, J.), entered October 8, 2009, which denied defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Gonzalez, P.J., Tom, Renwick, DeGrasse, Abdus-Salaam, JJ.

13377/02

Successive motions for summary judgment should not be entertained without a showing of newly 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 affidavit from a forensic pathologist, was clearly available to the movants earlier, and thus "should be rejected for failure to show due diligence in attempting to obtain the statement before the submission of the prior motion" (Taub v Art Students League of N.Y., 63 AD3d 630, 631 [2009]).

Even considering the substance of this later motion, defendants failed to establish entitlement to judgment on the issue of liability. Defendants contend that the court should have credited the opinion of their expert witness that despite the infant plaintiff's deposition account of what happened, the forensic evidence precluded the possibility he could have been shot by any intruders on their property. However, plaintiffs produced, in opposition to the motion, an affidavit from their own forensic pathologist disputing the conclusion offered by defendants' expert.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20100504

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