Opinion
9351 Index 300321/11
05-21-2019
Luz M. RAMIREZ, Plaintiff, v. GLOBAL HOME IMPROVEMENTS, INC., et al., Defendants, The City of New York, Defendant–Respondent, El Sol Contracting and Construction Corp., Defendant–Appellant.
Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Patrick Lawless of counsel), for appellant. Zachary W. Carter, Corporation Counsel, New York (Claibourne Henry of counsel), for respondent.
Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Patrick Lawless of counsel), for appellant.
Zachary W. Carter, Corporation Counsel, New York (Claibourne Henry of counsel), for respondent.
Acosta, P.J., Richter, Manzanet–Daniels, Webber, Kern, JJ.
Order, Supreme Court, Bronx County (Lizbeth Gonzalez, J.), entered on or about September 11, 2018, which denied defendant El Sol Contracting and Construction Corp.'s motion to renew its motion for summary judgment dismissing the complaint and all cross claims as against it, unanimously affirmed, without costs.
Defendant's submissions on its motion to renew do not constitute "new facts" ( CPLR 2221[e][2] ; see Tishman Constr. Corp. of N.Y. v. City of New York, 280 A.D.2d 374, 376–377, 720 N.Y.S.2d 487 [1st Dept. 2001] ). The authenticated photographs merely depict what plaintiff described in her deposition testimony, which was taken before defendant moved for summary judgment (see Cammeby's Equity Holdings LLC v. Mariner Health Care, Inc., 106 A.D.3d 563, 564, 966 N.Y.S.2d 26 [1st Dept. 2013] ). Nor do the affidavits by defendant's project manager and foreman constitute new facts; they are based on information in defendant's possession. Moreover, defendant failed to provide a reasonable justification for its failure to obtain the photographs and affidavits before moving for summary judgment ( CPLR 2221[e][3] ); see Sokoli v. Quality Carton, 286 A.D.2d 277, 729 N.Y.S.2d 888 [1st Dept. 2001] ; see also Gordon v. 476 Broadway Realty Corp., 161 A.D.3d 417, 418 [1st Dept. 2018], lv dismissed 32 N.Y.3d 1078, 89 N.Y.S.3d 108, 113 N.E.3d 942 [2018] ).