ACHTZIGER v. Mollenberg-Betz, Inc., Defendant-Appellant. (2006)

Supreme Court, Appellate Division, Fourth Department, New York.

William F. ACHTZIGER, Plaintiff-Respondent, v. MERZ METAL & MACHINE CORP., et al., Defendants, Mollenberg-Betz, Inc., Defendant-Appellant.

Decided: December 22, 2006

PRESENT: HURLBUTT, J.P., SMITH, CENTRA, AND PINE, JJ.

Colucci & Gallaher, P.C., Buffalo (Todd C. Bushway of Counsel), for Defendant-Appellant. Law Offices of Eugene C. Tenney, Buffalo (Courtney G. Scime of Counsel), for Plaintiff-Respondent.

We conclude that Supreme Court erred in denying the motion of Mollenberg-Betz, Inc. (defendant) seeking summary judgment dismissing the amended complaint against it. Contrary to the contention of plaintiff, the court properly entertained the motion, although it was the second summary judgment motion made by defendant, because it was based, in part, on newly discovered evidence (see Welch Foods v. Wilson, 277 A.D.2d 882, 883, 716 N.Y.S.2d 243; McNeil v. Wagner Coll., 246 A.D.2d 516, 516, 667 N.Y.S.2d 397). With respect to plaintiff's theories of negligence, defendant established its entitlement to judgment as a matter of law. In response, plaintiff failed to raise a triable issue of fact.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion is granted and the amended complaint is dismissed.

MEMORANDUM:

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