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Charles R. Kirby and Brandy L. Kirby v. Suburban Electrical Engineers Contractors

April 1, 2011

CHARLES R. KIRBY AND BRANDY L. KIRBY,
PLAINTIFFS-RESPONDENTS,
v.
SUBURBAN ELECTRICAL ENGINEERS CONTRACTORS, INC.,
DEFENDANT-APPELLANT, MARQUIP WARD UNITED, LLC, ET AL.,
DEFENDANTS.



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, granted in part plaintiffs' motion for leave to renew and upon renewal denied the cross motion of defendant Suburban Electrical Engineers Contractors, Inc. for summary judgment.

Kirby v. Suburban Elec. Engrs. Contrs., Inc.

Appellate Division, Fourth Department 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.

Decided on April 1, 2011

PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, LINDLEY, AND MARTOCHE, JJ.

It is hereby ORDERED that the order insofar as appealed from is reversed on the law without costs and plaintiffs' motion is denied.

Memorandum:

Supreme Court erred in granting that part of plaintiffs' motion seeking leave to renew their opposition to the cross motion of defendant Suburban Electrical Engineers Contractors, Inc. (Suburban) for summary judgment dismissing the amended complaint against it and, 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 original motion was made" (Tishman Constr. Corp. of N.Y. v City of New York, 280 AD2d 374, 376), it may not exercise that discretion unless the movants establish a "reasonable justification for the failure to present such facts on the prior motion" (CPLR 2221 [e] [3]; see Robinson v Consolidated Rail Corp., 8 AD3d 1080; Greene v New York City Hous. Auth., 283 AD2d 458). Here, plaintiffs failed to demonstrate that their purported new evidence was not in existence or not available at the time of Suburban's cross motion (see Patel v Exxon Corp., 11 AD3d 916). In support of their motion for leave to renew, plaintiffs submitted the affidavits of two employees of International Paper, where the machine that caused the injury at issue was located. We conclude, however, that the information presented in those affidavits could have been discovered and presented earlier with due diligence (see Ford v Lasky, 300 AD2d 536). Indeed, the evidence submitted in support of the motion for leave to renew "was within the purview of plaintiff[s'] knowledge at the time" of Suburban's cross motion (Tibbits v Verizon N.Y., Inc., 40 AD3d 1300, 1303). The record establishes that a private investigator for plaintiffs met with one of those employees, Daniel Scharrett, in 2006 and obtained a statement from him, ostensibly in the form of an affidavit. Although the court concluded that Scharrett's statement was not in admissible form because it was not properly sworn, Scharrett was known to plaintiffs and available to speak to their investigator in 2006. Plaintiffs filed a note of issue in August 2008, indicating their readiness for trial. Plaintiffs thereafter requested that the investigator locate Scharrett for the purpose of deposing him or to subpoena him for trial. The dissent's reliance upon De Cicco v Longendyke (37 AD3d 934) is misplaced. Here, plaintiffs had already secured a purported affidavit from Scharrett prior to Suburban's cross motion and did not submit an affidavit attesting to their efforts to obtain additional information from Scharrett for the purpose of defeating the cross motion.

All concur except Fahey, J., who dissents and votes to affirm in the following Memorandum: I respectfully dissent. I cannot agree with the majority that Supreme Court erred in granting that part of plaintiffs' motion seeking leave to renew their opposition to the cross motion of defendant Suburban Electrical Engineers Contractors, Inc. (Suburban) for summary judgment dismissing the amended complaint against it. I therefore would affirm as a matter 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 width before it was stacked and prepared for shipping. The slitter should have stopped running when the safety gate was lifted, but it did not. Plaintiff, unaware of the malfunction of the slitter, put his left hand into that machine to unclog a significant cardboard jam in the trim chute, 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 Marquip Ward United, LLC "and/or" Marquip Ward United, Inc. (collectively, Marquip defendants). Suburban assembled and ran the wiring for the stacker, while the Marquip defendants completed the "technical work" by "working out the bugs to the machine" and making it "run again." Shortly after the accident, an investigation confirmed that the slitter continued to operate when the safety gate was raised, which was an obvious malfunction inasmuch as the safety gate is designed to stop the slitter within a few seconds of the time at which it is opened.

Plaintiffs subsequently commenced this action seeking damages for injuries sustained by plaintiff in the accident. Plaintiffs filed a note of issue in August 2008, and Suburban moved to strike, inter alia, the note of issue. The court denied the motion but, inter alia, ordered that defendants were entitled to depose Daniel Scharrett, one of plaintiff's co-workers, within 60 days of December 24, 2008 and that any additional depositions were also to be completed within that time period.

Scharrett was never deposed, and the Marquip defendants and Suburban eventually moved and cross-moved, respectively, for summary judgment dismissing the amended complaint. The court granted the motion and cross motion in June 2009, determining that, in opposition to the motion and cross motion, plaintiffs failed to raise a triable issue of fact whether defendants created or exacerbated the dangerous condition, i.e., the faulty safety gate, by improperly connecting the wires to the circuit box attached to the slitter.

Plaintiffs moved for leave to renew their opposition to the motion and cross motion in August 2009. In support of their motion, plaintiffs submitted the affidavit of a private investigator who explained why Scharrett had never been deposed. According to that private investigator, Scharrett traveled with a carnival. The investigator had located Scharrett in North Carolina in October 2006, but plaintiffs' attorney was not present and thus did not interview him at that time. The investigator unsuccessfully searched for Scharrett for several months beginning in approximately November 2008 for the purpose of facilitating his deposition and finally ...


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