STANSKI v. EZERSKY (1998)

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

Herman STANSKI, et al., Plaintiffs-Appellants, v. William M. EZERSKY, et al., Defendants-Respondents.

Decided: May 12, 1998

Before MILONAS, J.P., and WALLACH, RUBIN and MAZZARELLI, JJ.

Norman Leonard Cousins, for Plaintiffs-Appellants. Michael Lesch, for Defendants-Respondents. William M. Ezersky, et al., Pro Se.

Order, Supreme Court, New York County (Karla Moskowitz, J.), entered March 4, 1997, which denied plaintiff's motion for a new trial on the ground of newly-discovered evidence, unanimously affirmed, without costs.

The motion was properly denied. The medical articles on which plaintiff relies to show that a causal relationship between the anesthesia he was administered and the abdominal myoclonus he suffers from is generally accepted in the scientific community either were not in existence at the time the action was pending, or, if they were in existence, could have been discovered by the exercise of due diligence and introduced at the trial (see, 10 Weinstein-Korn-Miller, N.Y. Civ Prac ¶ 5015.07, at 50-326; Prote Contr. Co. v. Board of Educ., 230 A.D.2d 32, 39, 657 N.Y.S.2d 158). Defendant Mondora's application to impose sanctions on plaintiff's attorneys for frivolous conduct is denied.

MEMORANDUM DECISION.

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