        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

138
CA 10-01183
PRESENT: SCUDDER, P.J., FAHEY, PERADOTTO, LINDLEY, AND MARTOCHE, JJ.


CHARLES R. KIRBY AND BRANDY L. KIRBY,
PLAINTIFFS-RESPONDENTS,

                    V                              MEMORANDUM AND ORDER

SUBURBAN ELECTRICAL ENGINEERS CONTRACTORS, INC.,
DEFENDANT-APPELLANT,
MARQUIP WARD UNITED, LLC, ET AL., DEFENDANTS.


HISCOCK & BARCLAY, LLP, ROCHESTER (SCOTT P. ROGOFF OF COUNSEL), FOR
DEFENDANT-APPELLANT.

ANTHONY F. ENDIEVERI, CAMILLUS, FOR PLAINTIFFS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Seneca County (Dennis
F. Bender, A.J.), entered March 12, 2010 in a personal injury action.
The order, insofar as appealed from, granted in part plaintiffs’
motion for leave to renew and upon renewal denied the cross motion of
defendant Suburban Electrical Engineers Contractors, Inc. for summary
judgment.

     It is hereby ORDERED that the order insofar as appealed from is
reversed on the law without costs and plaintiffs’ motion is denied.

     Memorandum: Supreme Court erred in granting that part of
plaintiffs’ motion seeking leave to renew their opposition to the
cross motion of defendant Suburban Electrical Engineers Contractors,
Inc. (Suburban) for summary judgment dismissing the amended complaint
against it and, upon renewal, denying the cross motion. Although a
court has discretion to “grant renewal, in the interest of justice,
upon facts [that] were known to the movant[s] at the time the original
motion was made” (Tishman Constr. Corp. of N.Y. v City of New York,
280 AD2d 374, 376), it may not exercise that discretion unless the
movants establish a “reasonable justification for the failure to
present such facts on the prior motion” (CPLR 2221 [e] [3]; see
Robinson v Consolidated Rail Corp., 8 AD3d 1080; Greene v New York
City Hous. Auth., 283 AD2d 458). Here, plaintiffs failed to
demonstrate that their purported new evidence was not in existence or
not available at the time of Suburban’s cross motion (see Patel v
Exxon Corp., 11 AD3d 916). In support of their motion for leave to
renew, plaintiffs submitted the affidavits of two employees of
International Paper, where the machine that caused the injury at issue
was located. We conclude, however, that the information presented in
those affidavits could have been discovered and presented earlier with
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                                                         CA 10-01183

due diligence (see Ford v Lasky, 300 AD2d 536). Indeed, the evidence
submitted in support of the motion for leave to renew “was within the
purview of plaintiff[s’] knowledge at the time” of Suburban’s cross
motion (Tibbits v Verizon N.Y., Inc., 40 AD3d 1300, 1303). The record
establishes that a private investigator for plaintiffs met with one of
those employees, Daniel Scharrett, in 2006 and obtained a statement
from him, ostensibly in the form of an affidavit. Although the court
concluded that Scharrett’s statement was not in admissible form
because it was not properly sworn, Scharrett was known to plaintiffs
and available to speak to their investigator in 2006. Plaintiffs
filed a note of issue in August 2008, indicating their readiness for
trial. Plaintiffs thereafter requested that the investigator locate
Scharrett for the purpose of deposing him or to subpoena him for
trial. The dissent’s reliance upon De Cicco v Longendyke (37 AD3d
934) is misplaced. Here, plaintiffs had already secured a purported
affidavit from Scharrett prior to Suburban’s cross motion and did not
submit an affidavit attesting to their efforts to obtain additional
information from Scharrett for the purpose of defeating the cross
motion.

     All concur except FAHEY, J., who dissents and votes to affirm in
the following Memorandum: I respectfully dissent. I cannot agree
with the majority that Supreme Court erred in granting that part of
plaintiffs’ motion seeking leave to renew their opposition to the
cross motion of defendant Suburban Electrical Engineers Contractors,
Inc. (Suburban) for summary judgment dismissing the amended complaint
against it. I therefore would affirm as a matter of law.

     This appeal arises from a November 10, 2004 incident in which
Charles R. Kirby (plaintiff) was injured during the course of his
employment with International Paper at one of its plants. The
accident occurred after plaintiff lifted a safety gate on a “slitter”
machine (hereafter, slitter) on a production line containing knives
and arbors that cut cardboard to a certain length and width before it
was stacked and prepared for shipping. The slitter should have
stopped running when the safety gate was lifted, but it did not.
Plaintiff, unaware of the malfunction of the slitter, put his left
hand into that machine to unclog a significant cardboard jam in the
trim chute, and one of the arbors cut off most of that hand.

     In October 2004, shortly before the accident, a “knife and
stacker” device (hereafter, stacker) was installed on the same
production line as the slitter by Suburban and defendants Marquip Ward
United, LLC “and/or” Marquip Ward United, Inc. (collectively, Marquip
defendants). Suburban assembled and ran the wiring for the stacker,
while the Marquip defendants completed the “technical work” by
“working out the bugs to the machine” and making it “run again.”
Shortly after the accident, an investigation confirmed that the
slitter continued to operate when the safety gate was raised, which
was an obvious malfunction inasmuch as the safety gate is designed to
stop the slitter within a few seconds of the time at which it is
opened.

     Plaintiffs subsequently commenced this action seeking damages for
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                                                         CA 10-01183

injuries sustained by plaintiff in the accident. Plaintiffs filed a
note of issue in August 2008, and Suburban moved to strike, inter
alia, the note of issue. The court denied the motion but, inter alia,
ordered that defendants were entitled to depose Daniel Scharrett, one
of plaintiff’s coworkers, within 60 days of December 24, 2008 and that
any additional depositions were also to be completed within that time
period.

     Scharrett was never deposed, and the Marquip defendants and
Suburban eventually moved and cross-moved, respectively, for summary
judgment dismissing the amended complaint. The court granted the
motion and cross motion in June 2009, determining that, in opposition
to the motion and cross motion, plaintiffs failed to raise a triable
issue of fact whether defendants created or exacerbated the dangerous
condition, i.e., the faulty safety gate, by improperly connecting the
wires to the circuit box attached to the slitter.

     Plaintiffs moved for leave to renew their opposition to the
motion and cross motion in August 2009. In support of their motion,
plaintiffs submitted the affidavit of a private investigator who
explained why Scharrett had never been deposed. According to that
private investigator, Scharrett traveled with a carnival. The
investigator had located Scharrett in North Carolina in October 2006,
but plaintiffs’ attorney was not present and thus did not interview
him at that time. The investigator unsuccessfully searched for
Scharrett for several months beginning in approximately November 2008
for the purpose of facilitating his deposition and finally located him
subsequent to the determination of the summary judgment motion and
cross motion through the use of an Internet search engine for public
records databases.

     Plaintiffs’ attorney thereafter met with Scharrett and, as a
result of that meeting, Scharrett executed an affidavit that led to
further conferences between plaintiffs and their expert engineer, as
well as contact between plaintiffs’ attorney and other coworkers of
plaintiff. The further investigation that flowed from those meetings
produced evidence that the negligence of Suburban in the installation
of the stacker and incidental rewiring of parts of the production line
caused the accident.

     Plaintiffs submitted the foregoing evidence in support of their
motion for leave to renew. The court granted that part of the motion
with respect to Suburban’s cross motion and, upon renewal, denied the
cross motion. In doing so, the court properly relied on De Cicco v
Longendyke (37 AD3d 934). In De Cicco, the Third Department
determined that the court did not abuse its discretion in granting the
plaintiff’s motion to renew his opposition to the defendant’s motion
for summary judgment, concluding that the plaintiff was reasonably
justified in failing to present certain evidence in opposition to the
motion because of the relocation of the nonparty witness from whom
that evidence was obtained (id. at 935).

     As the Third Department declined to do in De Cicco, we should not
interfere with the court’s proper exercise of discretion in
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                                                         CA 10-01183

determining the motion for leave to renew. Even assuming, arguendo,
that the evidence discovered after plaintiffs’ investigator located
Scharrett in 2009 could have been presented at the time Suburban’s
cross motion was made (cf. Foxworth v Jenkins, 60 AD3d 1306), I cannot
agree with the majority that plaintiffs failed to offer a reasonable
justification for their failure to submit that evidence in opposition
to the cross motion (see Matter of Lutheran Med. Ctr. v Daines, 65
AD3d 551, 553, lv denied 13 NY3d 712; see generally CPLR 2221 [e]
[3]). The record establishes that Scharrett’s work with a traveling
carnival limited plaintiffs’ ability to interview him carefully and
completely during the early stages of this case and that plaintiffs
reinvigorated their efforts to contact Scharrett well before the
motion and cross motion for summary judgment were filed. Although an
Internet search led to the discovery of Scharrett’s whereabouts in
relatively short order, that technology, while no longer nascent, is
far from established, and the apparent lack of familiarity and
expertise of plaintiffs’ attorney with that science does not support
denial of the renewal motion.

     Consequently, in view of Scharrett’s transient lifestyle, I
cannot conclude that the court abused its discretion in determining
that plaintiffs were reasonably justified in failing to present the
evidence that flowed from the 2009 meeting with Scharrett in
opposition to Suburban’s cross motion (see De Cicco, 37 AD3d at 935).
Motions for leave to renew are addressed to the sound discretion of
the court, and the majority’s decision here is contrary to the ends of
justice and incompatible with the judicial flexibility that CPLR 2221
is intended to provide (see Mem of NY State Bar Assn Comm on CPLR,
Bill Jacket, L 1999, ch 281, at 6-7; see e.g. Hamlet at Willow Cr.
Dev. Co., LLC v Northeast Land Dev. Corp., 64 AD3d 85, 100, lv
dismissed 13 NY3d 900; Matter of Gold v Gold, 53 AD3d 485, 487; see
generally Garland v RLI Ins. Co., 79 AD3d 1576, 1577-1579 [Sconiers,
J., dissenting]). Indeed, “[t]he fundamental and overriding purpose
of CPLR 2221 should be to give courts and litigants every reasonable
opportunity to obtain the legally correct and just result based on the
merits of the case” (Garland, 79 AD3d at 1578-1579).

     Finally, I conclude that the court properly denied Suburban’s
cross motion for summary judgment upon renewal. Although “ ‘a
contractual obligation, standing alone, will generally not give rise
to tort liability in favor of a third party’ ” (Cumbo v Dormitory
Auth. of State of N.Y., 71 AD3d 1513, 1514, quoting Espinal v Melville
Snow Contrs., 98 NY2d 136, 138; see Church v Callanan Indus., 99 NY2d
104, 111), “ ‘a defendant who undertakes to render services and then
negligently creates or [exacerbates] a dangerous condition may be
liable for any resulting injury’ ” (Cumbo, 71 AD3d at 1514, quoting
Espinal, 98 NY2d at 141-142). Here, Suburban submitted evidence that
it did not work on the slitter and thus met its initial burden of
establishing that it did not create or exacerbate the allegedly
dangerous condition (see generally Espinal, 98 NY2d at 141-142). In
opposition to the cross motion, however, plaintiffs raised a triable
issue of fact whether Suburban created the allegedly dangerous
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                                                         CA 10-01183

condition giving rise to plaintiff’s injury (see generally Zuckerman v
City of New York, 49 NY2d 557, 562).




Entered:   April 1, 2011                       Patricia L. Morgan
                                               Clerk of the Court
