Mundo v. SMS Hasenclever Maschinenfabrik

224 A.D.2d 343, 638 N.Y.S.2d 68, 1996 N.Y. App. Div. LEXIS 1465

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 27, 1996
• Status: Published

Opinion

—Order, Supreme Court, Bronx County (Stanley Green, J.), entered December 23, 1994, which, in a products liability action, granted defendant manufacturer’s motion for summary judgment dismissing the complaint, and order, same court (Bertram Katz, J.), entered on or about March 15, 1995, which denied plaintiffs’ motion for renewal, unanimously affirmed, without costs.

Defendant’s motion for summary judgment, made some eight years after the accident and five years after commencement of the action, was properly granted for plaintiff’s failure to specify any defect in the bonding press in which his hand was caught (see, Jerry v Borden Co., 45 AD2d 344, 348). While plaintiffs did submit an expert’s affidavit suggesting a design defect as the cause of the injury on their motion to renew, this was properly rejected by the IAS Court as inexcusably belated, with an apt reference to the principle that "[rjenewal is granted sparingly * * * it is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation” (Matter of Beiny, 132 AD2d 190, 210, lv dismissed 71 NY2d 994; see also, Matter of Barnes v State of New York, 159 AD2d 753, lv dismissed 76 NY2d 935). Concur — Sullivan, J. P., Ellerin, Rubin, Kupferman and Williams, JJ.