BAILEY v. GABRIELLI TRUCK LEASING LLC (2023)

Order, Supreme Court, New York County (Lisa S. Headley, J.), entered on or about August 25, 2022, which denied defendants’ motion to renew (1) plaintiff's motion for summary judgment on liability as against defendant Denroy Keith Duncan and to dismiss the affirmative defenses of comparative negligence and failure to use a seatbelt, and (2) defendants Gabrielli Truck Leasing LLC and Gabrielli Holding Co. Inc.’s (collectively Gabrielli defendants) motion to dismiss the complaint as against them, unanimously affirmed, without costs.

The Gabrielli defendants neither offered a reasonable justification for their failure to use due diligence to locate Duncan prior to the original motion, nor presented new evidence detailing defense counsel's efforts to secure his appearance for a deposition (see Bronson v. Jacobs, 204 A.D.3d 531, 531, 165 N.Y.S.3d 280 [1st Dept. 2022]).  Defendants’ arguments as to Duncan's unavailability for deposition and the affidavit of Gabrielli Truck Leasing's manager as to the Gabrielli defendants’ ownership of the trailer are barred by the law of the case doctrine, as they were previously considered and rejected by this Court (see Bailey v. Gabrielli Truck Leasing LLC, 210 A.D.3d 573, 180 N.Y.S.3d 66 [1st Dept. 2022]).

We have considered defendants’ remaining arguments and find them unavailing.