Hugelmaier v. Town of Sweden

101 A.D.2d 996

Opinions

— Order reversed, without costs, and motion denied. Memorandum: Special Term abused its discretion in granting plaintiff’s motion to renew argument on defendant’s previous motion for summary judgment, decided in plaintiff’s favor, so as to allow plaintiff to include additional evidence in the record on appeal of the previous motion. A motion for renewal “should be denied where no valid excuse is offered for not submitting the additional facts upon the original application” (Olean Urban Renewal Agency v Herman, 101 AD2d 712). Plaintiff’s attorney’s affidavit in support of the motion to renew fails to set forth any reason why the proffered evidence was not originally submitted in opposition to defendant’s motion. Further, the motion to renew was not made until defendant’s brief had been filed, the record prepared and preargument conference proceedings had begun. All concur, except Callahan and O’Donnell, JJ., who dissent and vote to affirm, in the following memorandum.