Achtziger v Merz Metal & Mach. Corp.

Achtziger v Merz Metal & Mach. Corp. 2006 NY Slip Op 09758 [35 AD3d 1176] December 22, 2006 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 14, 2007

William F. Achtziger, Respondent, v Merz Metal & Machine Corp. et al., Defendants, and Mollenberg-Betz, Inc., Appellant.

—[*1]Appeal from an order of the Supreme Court, Erie County (John F. O'Donnell, J.), entered December 30, 2005. The order denied the motion of defendant Mollenberg-Betz, Inc. for summary judgment dismissing the amended complaint against it.

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: 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 AD2d 882, 883 [2000]; McNeil v Wagner Coll., 246 AD2d 516, 516 [1998]). 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. Present—Hurlbutt, J.P., Smith, Centra and Pine, JJ.