Supreme Court of New York, Nassau County
Defendant Perkins Engine, Inc. moved to renew a court order denying its motion for summary judgment. A motion for leave to renew or reargue is based on new facts not offered on the prior motion that would change the prior determination, and reasonable justification for the failure to present such facts on the prior motion.
The court had denied Perkins’ motion, finding that it failed to meet its initial burden on summary judgment by including expert support. That is, Perkins did not offer the opinion of an expert who could say that the plaintiff’s alleged exposure was insufficient to establish liability as to Perkins. Perkins attempted to remedy the insufficiency by including expert affidavits in its motion to renew, but the court noted that Perkins failed to explain why the affidavits, all dated prior to the filing of the previous motion, were not included in the previous motion. Perkins cited to a number of appellate decisions, as well as the Court of Appeal’s Nemeth decision, all of which were decided after the court issued its summary judgment decision. While the court noted that a change in the law can be a basis of a motion to renew, the cases cited by Perkins did not change the standard required to establish causation in an asbestos case. As such, because the cases cited by Perkins did not change the law, and the cases were not a valid basis for Perkins submitting evidence for the first time on a motion to renew that was previously available, the court denied Perkins’ motion to renew.
Read the full decision here.