Chelsea Piers Mgmt. v. Forest Electric Corp.

• Decision Date: 15 March 2001
• Citation: 722 N.Y.S.2d 29,281 AD2d 252
• Parties: (A.D.1 Dept. 2001) Chelsea Piers Management, et al., Plaintiffs-Respondents, v. Forest Electric Corporation, et al., Defendants, and Indemnity Insurance Company of North America, Defendant-Appellant. 3538 : FIRST JUDICIAL DEPARTMENT
• Court: New York Supreme Court — Appellate Division

Page 29

722 N.Y.S.2d 29 (A.D.1 Dept. 2001)

Chelsea Piers Management, et al., Plaintiffs-Respondents, v. Forest Electric Corporation, et al., Defendants, and Indemnity Insurance Company of North America, Defendant-Appellant.

3538

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION: FIRST JUDICIAL DEPARTMENT

March 15, 2001

Lisa M. Comeau - for plaintiffs-respondents,

Kevin D. Szczepanski - for defendant-appellant.

Ellerin, J.P., Wallach, Lerner, Saxe, JJ.

Order, Supreme Court, New York County (Leland DeGrasse, J.), entered January 28, 2000, which, inter alia, denied the motion of defendant Indemnity Insurance Company of North America (IINA) to renew its opposition to plaintiffs' previously granted cross motion for summary judgment declaring that defendant IINA is obligated to defend and indemnify plaintiffs in the underlying action, unanimously affirmed, with costs.

IINA's motion for renewa was properly denied since the evidentiary matter upon which it was premised, a mere restatement in affidavit form of information supplied to plaintiffs by IINA at the time IINA rejected their insurance claim, was available to IINA at the time of the original motion and no viable excuse has been submitted for the failure to submit it at that time. Renewal is not available as a "second chance" for parties who have not exercised due diligence in making their first factual presentation (see, Rubinstein v Goldman, 225 A.D.2d 328, lv denied 88 N.Y.2d 815).