Weisser v. Park Lane Foods, Ltd.

202 A.D.2d 496, 610 N.Y.S.2d 804, 1994 N.Y. App. Div. LEXIS 2478

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 14, 1994
• Status: Published

Opinion

—In an action to recover on promissory notes and guarantees, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Seidell, J.), dated May 14, 1992, which, upon the defendants’ motion to renew the plaintiff’s motion for summary judgment which was granted by an order of the same court dated January 2, 1992, granted renewal, and, upon renewal, vacated the order dated January 2, 1992, and denied the plaintiff’s motion for summary judgment.

Ordered that the order dated May 14, 1992, is affirmed, with costs.

The Supreme Court properly exercised its discretion in granting the defendants’ motion for renewal, although the affidavits submitted in support thereof contained facts which the defendants failed to demonstrate were newly discovered. The requirement that a motion for renewal be based upon newly-discovered facts is a flexible one, and a court, in its discretion, may grant renewal upon facts known to the moving party at the time of the original motion (see, Karlin v Bridges, 172 AD2d 644; Saferstein v Stark, 171 AD2d 856).

Inasmuch as the affidavits submitted by the defendants on the renewal motion raised questions of fact as to the genuineness of the signatures on the promissory notes and guarantees upon which the plaintiff seeks to collect in this action, the court properly denied the plaintiff’s motion for summary judgment. Bracken, J. P., Joy, Hart and Friedmann, JJ., concur.