Hantz v. Fishman

• Decision Date: 06 November 1989
• Citation: 547 N.Y.S.2d 350,155 A.D.2d 415
• Parties: Helen HANTZ, et al., Appellants, v. Ted S. FISHMAN, et al., Defendants Third-Party Plaintiffs-Respondents; Ascon Distributing Corp., Third-Party Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 350

547 N.Y.S.2d 350

155 A.D.2d 415

Helen HANTZ, et al., Appellants, v. Ted S. FISHMAN, et al., Defendants Third-Party Plaintiffs-Respondents Ascon Distributing Corp., Third-Party Defendant-Respondent.

Supreme Court, Appellate Division Second Department.

Nov. 6, 1989.

Shayne, Dachs, Stanisci & Corker, Mineola (Jonathan A. Dachs and Norman H. Dachs, of counsel), for appellants.

Huenke & Rodriguez, Carle Place (Theodore E. Huenke, of counsel), for defendants third-party plaintiffs-respondents.

Hammill, O'Brien, Croutier & Dempsey, P.C., Mineola (Anton Piotroski, of counsel), for third-party defendant-respondent.

Before KUNZEMAN, J.P., and SPATT, SULLIVAN and BALLETTA, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from (1) an order of the Supreme Court, Nassau County (Molloy, J.), dated August 10, 1988, which granted the motion of the defendants third-party plaintiffs and the cross motion of the third-party defendant for summary judgment dismissing the amended complaint, and (2) an order of the same court, dated November 9, 1988, which denied the plaintiffs' motion, in effect, for leave to renew.

ORDERED that the order dated November 9, 1988, is reversed, on the law, renewal is granted, and, upon renewal, the order dated August 10, 1988, is vacated and the motion and cross motion for summary judgment are denied; and it is further,

ORDERED that the appeal from the order dated August 10, 1988, is dismissed as academic, in light of our determination on the appeal from the order dated November 9, 1988; and it is further,

ORDERED that the appellants are awarded one bill of costs.

Initially we find that the plaintiffs' motion, although denominated as one for leave to reargue and/or renew, should have been considered one for leave to renew since it was supported by new evidence (see, Weisse v. Kamhi, 129 A.D.2d 698, 514 N.Y.S.2d 461). 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, Oremland v. Miller Minuteman Constr. Corp., 133 A.D.2d 816, 520 N.Y.S.2d 397). Under the circumstances of this case, the court should have exercised its discretion to grant the plaintiffs' motion for leave to renew its opposition to the motion and cross motion for summary judgment dismissing the amended complaint (see, Vitale v. La Cour, 96 A.D.2d 941, 466 N.Y.S.2d 392; Esa v. New York Prop. Ins. Underwriting Assn., 89 A.D.2d 865, 453 N.Y.S.2d 247).

It is well-established that summary judgment should be granted only if there are no material and triable issues of fact (see, Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404, 165 N.Y.S.2d 498, 144 N.E.2d 387). Summary judgment is a drastic remedy and should not be granted if there is any doubt as to the existence of a triable issue (see, Rotuba Extruders v. Ceppos, 46 N.Y.2d 223, 231, 413 N.Y.S.2d 141, 385 N.E.2d 1068). It is not up to the court to determine issues of credibility or the probability of success on the merits, but rather whether there exists a genuine issue of fact (see, Capelin Assoc. v. Globe Mfg. Corp., 34 N.Y.2d 338, 341, 357 N.Y.S.2d 478, 313 N.E.2d 776). Issue finding rather than issue...