Banow v. Simins

Appellate Division of the Supreme Court of New York

Banow v. Simins

53 A.D.2d 542, 384 N.Y.S.2d 465, 1976 N.Y. App. Div. LEXIS 13161

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 15, 1976

StatusPublished

Cited by11 cases

This text of 53 A.D.2d 542 (Banow v. Simins) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Banow v. Simins, 53 A.D.2d 542, 384 N.Y.S.2d 465, 1976 N.Y. App. Div. LEXIS 13161 (N.Y. Ct. App. 1976).

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Opinion

Order, Supreme Court, Bronx County, entered December 18, 1975, granting respondents’ cross motion to dismiss appellants’ motion to renew, unanimously affirmed, without costs and without disbursements. Appellants are employees of the Bureau of Building Design of the New York City Department of Public Works. They commenced an article 78 proceeding claiming they were improperly "passed over” for promotion. A denial of their petition was affirmed by this court (Matter of Banow v Simins, 46 AD2d 844), and their motion for leave to appeal was denied by the Court of Appeals (36 NY2d 645). Appellants thereafter brought the instant motion to renew on the basis of newly discovered evidence, to wit, the transfer by their department to another department of a budgetary position to which one of them might have been promoted. While, in certain circumstances, it might be proper for the court of original jurisdiction to entertain a motion to renew based upon newly discovered evidence after the appellate courts have affirmed the original order (see Sheridan v Andrews, 80 NY 648; Henry v Allen, 147 NY 346; Kirkpatrick Home for Childless Women v Kenyon, 209 App Div 179, 181), appellants herein have not demonstrated that the newly discovered evidence would have rendered a different result. Nor have appellants shown that with due diligence they could not have produced the evidence at the time of the original petition. Concur—Stevens, P. J., Markewich, Capozzoli, Nunez and Lynch, JJ.

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Order, Supreme Court, Bronx County, entered December 18, 1975, granting respondents’ cross motion to dismiss appellants’ motion to renew, unanimously affirmed, without costs and without disbursements. Appellants are employees of the Bureau of Building Design of the New York City Department of Public Works. They commenced an article 78 proceeding claiming they were improperly "passed over” for promotion. A denial of their petition was affirmed by this court (Matter of Banow v Simins, 46 AD2d 844), and their motion for leave to appeal was denied by the Court of Appeals (36 NY2d 645). Appellants thereafter brought the instant motion to renew on the basis of newly discovered evidence, to wit, the transfer by their department to another department of a budgetary position to which one of them might have been promoted. While, in certain circumstances, it might be proper for the court of original jurisdiction to entertain a motion to renew based upon newly discovered evidence after the appellate courts have affirmed the original order (see Sheridan v Andrews, 80 NY 648; Henry v Allen, 147 NY 346; Kirkpatrick Home for Childless Women v Kenyon, 209 App Div 179, 181), appellants herein have not demonstrated that the newly discovered evidence would have rendered a different result. Nor have appellants shown that with due diligence they could not have produced the evidence at the time of the original petition. Concur—Stevens, P. J., Markewich, Capozzoli, Nunez and Lynch, JJ.

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Bluebook (online)

53 A.D.2d 542, 384 N.Y.S.2d 465, 1976 N.Y. App. Div. LEXIS 13161, Counsel Stack Legal Research, https://law.counselstack.com/opinion/banow-v-simins-nyappdiv-1976.

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