Mundo v. SMS Hasenclever Maschinenfabrik

• Decision Date: 27 February 1996
• Citation: 224 A.D.2d 343,638 N.Y.S.2d 68
• Parties: Jose MUNDO, et al., Plaintiffs-Appellants, v. SMS HASENCLEVER MASCHINENFABRIK, Defendant-Respondent, and Siemens Corporation, Defendant. .
• Court: New York Supreme Court — Appellate Division

Page 68

638 N.Y.S.2d 68

224 A.D.2d 343

Jose MUNDO, et al., Plaintiffs-Appellants, v. SMS HASENCLEVER MASCHINENFABRIK, Defendant-Respondent, and Siemens Corporation, Defendant. [And a Third Party Action].

Supreme Court, Appellate Division, First Department.

Feb. 27, 1996.

P.L. Gale, New York City, for plaintiffs-appellants.

A.J. McNulty, New York City, for defendant-respondent.

Before SULLIVAN, J.P., and ELLERIN, RUBIN, KUPFERMAN and WILLIAMS, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, Bronx County (Stanley Green, J.), entered December 23, 1994, which, in a products liability action, granted defendant manufacturer's motion for summary judgment dismissing the complaint, and order, same court (Bertram Katz, J.), entered on or about March 15, 1995, which denied plaintiffs' motion for renewal, unanimously affirmed, without costs.

Defendant's motion for summary judgment, made some eight years after the accident and five years after commencement of the action, was properly granted for plaintiffs' failure to specify any defect in the bonding press in which his hand was caught (see, Jerry v. Borden Co., 45 A.D.2d 344, 348, 358 N.Y.S.2d 426). While plaintiffs did submit an expert's affidavit suggesting a design defect as the cause of the injury on their motion to renew, this was properly rejected by the IAS court as inexcusably belated, with an apt reference to the principle that "renewal is granted sparingly ... it is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation" (Matter of Beiny, 132 A.D.2d 190, 210, 522 N.Y.S.2d 511, lv. dismissed 71 N.Y.2d 994, 529 N.Y.S.2d 277, 524 N.E.2d 879; see also, Barnes v. State of New York, 159 A.D.2d 753, 552 N.Y.S.2d 57, lv. dismissed 76 N.Y.2d 935, 563 N.Y.S.2d 63, 564 N.E.2d 673).