Accident Victim Didn't Show Due Diligence in Seeking to Overturn Prior Summary Judgment Dismissing His Case

Case: Sealey v. Westend Gardens Housing Development Fund Co.

Court: Supreme Court, Appellate Division, Second Department, New York

Date: 7/11/12

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn and Queens; Queens injury lawyer)

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Facts: Plaintiff's accident occurred in 1999, when he was trying to enter an elevator in his electric wheelchair. The elevator was not level, and his wheelchair flipped, injuring him. He sued the building owner and others. Plaintiff lost a defense summary judgment motion made in 2005 which dismissed his case. That dismissal was affirmed by the appeals court in 2007.

He came back with a motion to reopen the summary judgment against him, claiming newly discovered evidence of misdeeds. That motion to reverse the earlier grant of summary judgment against this accident victim was denied by the lower court. This appeal followed.

The new evidence was an elevator manual dated 1990, which plaintiff had in his possession for several years before his accident. He argued that the defense had submitted a false elevator manual in their motion for summary judgment, as it was published after the accident. Plaintiff argued that the difference in the manuals should change the outcome of the summary judgment granted against him in 2005 and affirmed on appeal in 2007.

Held: Moving after an appeal to change the underlying result gives the party seeking to overturn that order a heavy burden. Plaintiff did not show appropriate diligence in presenting his so-called new evidence. His motion is denied and the summary judgment against him remains. His case stays dismissed.

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