JONES v. [And a Third-Party Action].

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

Jean Graham JONES, et al., Plaintiffs-Appellants, v. 170 EAST 92ND STREET OWNERS CORP., et al., Defendants-Respondents. [And a Third-Party Action].

Decided: January 19, 2010

MAZZARELLI, J.P., SAXE, ACOSTA, DeGRASSE, MANZANET-DANIELS, JJ. Law Offices of Lee M. Nigen & Assoc., P.C., Brooklyn (Lee M. Nigen of counsel), for appellants. Gartner & Bloom, P.C., New York (Arthur P. Xanthos of counsel), for respondents.

Order, Supreme Court, New York County (Louis B. York, J.), entered February 9, 2009, which, in an action for personal injuries allegedly caused by mold in plaintiffs tenants' apartment, insofar as appealable, denied plaintiffs' motion to renew defendants building owners' prior motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

No appeal lies from the portion of the order on appeal that denied reargument (CPLR 2221;  Stratakis v. Ryjov, 66 A.D.3d 411, 885 N.Y.S.2d 597 [2009] ).   With respect to renewal, the only purportedly new evidence submitted by plaintiffs was a doctor's affidavit responsive to the portion of the motion court's prior order stating that defendants' medical evidence was unrefuted, and opining that the mold in plaintiffs' apartment had contributed to the sinusitis and respiratory problems for which he was treating one of the two plaintiffs.   Putting aside that this affidavit was inadvertently omitted from plaintiffs' moving papers and first submitted only in their reply (but cf. Tomaino v. 209 E. 84 St. Corp., 68 A.D.3d 527, 528, 891 N.Y.S.2d 51 [2009] ), plaintiffs' attorney's bald statement that the doctor's affidavit was not included in their opposition to the prior motion because “it was not made available to Plaintiffs until this time” does not satisfy plaintiffs' burden “to show due diligence in attempting to obtain the statement before the submission of the prior motion” (CPLR 2221[e][3];  see Taub v. Art Students League of N.Y., 63 A.D.3d 630, 882 N.Y.S.2d 94 [2009] ).