Metcalfe v. City of New York

223 A.D.2d 410, 636 N.Y.S.2d 60, 1996 N.Y. App. Div. LEXIS 343

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 18, 1996
• Status: Published

Opinion

Order, Supreme Court, New York County (Walter Tolub, J.), entered March 14, 1995, which granted plaintiff’s motion to renew, and upon renewal, modified its prior order so as to vacate a prior award of summary judgment in favor of defendant-appellant and reinstate it as a defendant in the action, unanimously affirmed, without costs.

Renewal was properly granted as plaintiff presented evidence to demonstrate the existence of an issue of fact as to whether defendant-appellant was performing construction work at the site at the time of plaintiff's injury, including documents from defendant City of New York and identification of certain equipment in photographs which information and interpretation was unknown at the time of the original motion and obtained subsequently in the course of the other defendants’ depositions (see, Foley v Roche, 68 AD2d 558, 568). Further, to the extent, if any, that the rigorous requirements for renewal were not fully met, the court properly granted such relief here so as not to "defeat substantive fairness” (Lambert v Williams, 218 AD2d 618, 621). Discovery of appellant was necessary to determine its involvement at the the work site, and the court provided in the present order under review that appellant could renew its motion for summary judgment dismissal of the complaint if, after discovery, no evidence of liability were found. Concur—Murphy, P. J., Sullivan, Kupferman, Ross and Williams, JJ.