Buckman v. Perry's Taxi, Inc.

Appellate Division of the Supreme Court of New York

Buckman v. Perry's Taxi, Inc.

24 A.D.2d 913, 264 N.Y.S.2d 694, 1965 N.Y. App. Div. LEXIS 3007

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

DecidedNovember 18, 1965

StatusPublished

Cited by8 cases

This text of 24 A.D.2d 913 (Buckman v. Perry's Taxi, Inc.) 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

Buckman v. Perry's Taxi, Inc., 24 A.D.2d 913, 264 N.Y.S.2d 694, 1965 N.Y. App. Div. LEXIS 3007 (N.Y. Ct. App. 1965).

Pincite

Opinion

Reynolds, J.

Appeal from an order of the Supreme Court, Ulster County, denying appellants’ motion for an order setting aside the judgment and for a new trial on the grounds of newly discovered evidence (CPLR 5015, subd. [a], par. 2). In October, 1964 respondents obtained verdicts totaling $15,000 for personal injuries, medical expenses and loss of services stemming from an automobile accident. Thereafter, in April, 1965 appellants made the instant motion. In support of their motion appellants introduced sworn affidavits to the effect that the injuries sustained by respondent Diane Buckman resulted not from the automobile accident but rather from an attack perpetrated by her husband expressly to induce injuries when none were discovered to have resulted from the accident, [914]*914that respondents’ counsel knew the injuries were so caused a substantial time prior to the trial and that appellants were not aware of this information prior to March 24, 1965. In opposition to the motion respondents submitted affidavits denying all the allegations in appellants’ affidavits and allegedly explaining the motives of the various affiants in making their statements. The instant motion was, of course, directed to the discretion of the trial court and thus only if such discretion was abused can this court interfere. Such motions, since they tend to protract litigation, are not favored (4 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 4404.27), and thus a heavy burden is cast on the party seeking relief to establish both the genuineness and materiality of his “ new evidence ” and that despite due diligence he could not have discovered the same in preparing his ease for trial (4 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 4404.29). Here, considering all facets of the present record, we cannot say that the denial of the motion amounted to an abuse of discretion. Order affirmed, with costs. Gibson, P. J., Taylor, Aulisi and Hamm, JJ., eonenr.

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Reynolds, J.

Appeal from an order of the Supreme Court, Ulster County, denying appellants’ motion for an order setting aside the judgment and for a new trial on the grounds of newly discovered evidence (CPLR 5015, subd. [a], par. 2). In October, 1964 respondents obtained verdicts totaling $15,000 for personal injuries, medical expenses and loss of services stemming from an automobile accident. Thereafter, in April, 1965 appellants made the instant motion. In support of their motion appellants introduced sworn affidavits to the effect that the injuries sustained by respondent Diane Buckman resulted not from the automobile accident but rather from an attack perpetrated by her husband expressly to induce injuries when none were discovered to have resulted from the accident, [914]*914that respondents’ counsel knew the injuries were so caused a substantial time prior to the trial and that appellants were not aware of this information prior to March 24, 1965. In opposition to the motion respondents submitted affidavits denying all the allegations in appellants’ affidavits and allegedly explaining the motives of the various affiants in making their statements. The instant motion was, of course, directed to the discretion of the trial court and thus only if such discretion was abused can this court interfere. Such motions, since they tend to protract litigation, are not favored (4 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 4404.27), and thus a heavy burden is cast on the party seeking relief to establish both the genuineness and materiality of his “ new evidence ” and that despite due diligence he could not have discovered the same in preparing his ease for trial (4 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 4404.29). Here, considering all facets of the present record, we cannot say that the denial of the motion amounted to an abuse of discretion. Order affirmed, with costs. Gibson, P. J., Taylor, Aulisi and Hamm, JJ., eonenr.

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Bluebook (online)

24 A.D.2d 913, 264 N.Y.S.2d 694, 1965 N.Y. App. Div. LEXIS 3007, Counsel Stack Legal Research, https://law.counselstack.com/opinion/buckman-v-perrys-taxi-inc-nyappdiv-1965.

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