Booth v. 3669 Delaware, Inc.

275 A.D.2d 974, 714 N.Y.S.2d 251, 2000 N.Y. App. Div. LEXIS 9597

Opinion

—Order unanimously reversed on the law without costs and motion to renew denied. Memorandum: Plaintiffs commenced this action alleging Labor Law violations and negligence. On a prior appeal, we reversed insofar as appealed from an order that denied the motions of Benderson Development Company, Inc. and Northeast Mechanical, Inc. (defendants) to dismiss the complaint against them on the ground of release, and the Court of Appeals affirmed our order (Booth v 3669 Delaware, 242 AD2d 921, affd 92 NY2d 934). Plaintiffs thereafter moved in Supreme Court to renew the prior motions based on newly discovered evidence. The court improvidently exercised its discretion in granting plaintiffs’ motion to renew and denying the motions. Our prior reversal of Supreme Court’s order was not conditioned upon any subsequent event and thus constituted the law of the case “ ‘until modified or reversed by a higher court’ ” (Rohring v City of Niagara Falls, 185 AD2d 685, lv denied 82 NY2d 662). In any event, plaintiffs were not entitled to renewal because they did not show due diligence in presenting the allegedly new evidence to Supreme Court; plaintiffs waited over a year after they had obtained the evidence before seeking renewal (see, Cannistra v Gibbons, 224 AD2d 570, 571-572; Levitt v County of Suffolk, 166 AD2d 421, 422-423, lv dismissed 77 NY2d 834; see also, Matter of 256 Bergen Hous. Corp. v 256 Bergen Assocs., 225 AD2d 785). (Appeals from Order of Supreme Court, Erie County, Burns, J. — Renewal.) Present — Pigott, Jr., P. J., Hayes, Hurlbutt, Scudder and Lawton, JJ.