The plaintiffs move to vacate the summary judgment order issued by retired Justice Frank V. Ponterio on August 30, 2000 pursuant to CPLR § 5015(a)(2) and (3) because newly discovered evidence has been uncovered that would probably have produced a different result. Since the summary judgment decision and order occurred prior to trial, this court will treat this motion for renewal on the basis of newly discovered evidence, pursuant to CPLR § 2221(e).

After reconsideration, the decision and order of August 30, 2000 shall be set aside and further discovery shall be conducted on an expedited basis.

In his August 30, 2000 decision and order Justice Ponterio stated the facts of this case succinctly as follows:

On November 3, 1997, plaintiff Jay Abrams, and a co-worker, Michael Torres, were working in a house owned by defendant Suzanne Berelson. They were hired by Berelson to clean carpets and clean out the house generally following the death of Berelson's mother in September 1997. Torres found a rifle in a bedroom, walked into the master bedroom where Abrams was located and accidentally shot Abrams in the jaw. [*2]

Justice Ponterio went on to grant the defendant's motion for summary judgment dismissing the plaintiffs' complaint, holding that the plaintiff could not establish actual or constructive notice of the injury-producing condition. The court reasoned that:

Plaintiff can offer no proof to establish where the rifle was found, whether it was visible and apparent or how long it was present in the house prior to the shooting. The only person who could testify as to the location of the rifle is Torres and he has given no testimony thus far and apparently cannot be located by either party.

On this motion for reconsideration the plaintiffs have come forward with the affidavit of Michael Torres stating that he is available to testify in this action. Mr. Torres offers the following sworn statement concerning his failure to come forward in this civil action:

Shortly after the police investigated the shooting and confirmed that it was an accident on my part, and that I had committed no crime, I made myself hard to find. I moved my residence from 23 Kelvin Street, Staten Island, NY to the basement of a friend on Bay Terrace [Avenue] sic. I stopped answering my cell phone. I changed jobs from All Boro carpet cleaning and it's sister company Superior Air Conditioning, located on Sackett St., Brooklyn and became unemployed for some time. I did not contact the Abrams family. I did not have a telephone listed under my name. For some time I lived with various family members, but I instructed them to tell everyone who asked, that they did not know how I could be contacted, especially the Abrams family. I was careful to leave no trail, and if I had to furnish an address for employment I used my mother's address, even when I was not living with her. I felt emotionally devastated by the accident and I just wanted the situation to go away. I was in hiding.

In addition to the availability of Michael Torres to offer testimony in this manner, the plaintiffs submit a letter dated July 30, 2009 from Daniel M. Donovan, Jr., the Richmond County District Attorney, stating that the police had not destroyed the evidence in this case as it was once believed.

In her affidavit in support of this motion the plaintiff, Kelli Abrams, avers to her continued efforts to locate Michael Torres and find the missing evidence. The plaintiffs now move to have the decision and order of Justice Ponterio vacated and the case restored to the pre-trial calendar.

A motion for leave to renew is addressed to the sound discretion of the motion court, and the requirement that a motion for renewal be based upon newly discovered facts is a flexible one. Thus, in certain situations, a court, in its discretion, may grant renewal upon facts known to the moving party at the time of its original motion.^[FN1] Indeed, the court of original jurisdiction may entertain a motion to renew or vacate a prior order or judgment on the grounds of newly discovered evidence even after an appellate court has affirmed the original order or judgment.^[FN2]

The issue before this court is whether the plaintiff acted with due diligence in producing the new evidence. In its prior decision the court remarked that both the plaintiffs and the defendant were unable to locate Michael Torres. After years of searching, the plaintiffs were able to locate and secure the cooperation of Michael Torres to submit to a non-party deposition. As was made evident by Justice Ponterio's original decision and order, Michael Torres' testimony alone will set forth the location of the weapon.

Additionally, the reappearance of the rifle that was fired which caused the injury can now be examined, which directly relates to Justice Ponterio's reasoning as to the issue of time. An expert's examination of the weapon in question may reveal the true age of the rifle to be approximately fifty years old, which then becomes an issue of fact as to whether the defendant had sufficient notice of its existence, especially since the defendant has acknowledged that her father owned a gun when she was a child.

It is the finding of this court that the plaintiffs exercised all due diligence in presenting the newly discovered evidence to this court for reconsideration. Here, Michael Torres, a key witness by his own admission, actively concealed his whereabouts from both the plaintiffs and the defendant. Furthermore, in originally considering the defendant's motion for summary judgment the court and the parties proceeded on the assumption that the rifle at issue had been destroyed by the police. As the rifle has become available for examination by the parties and Michael Torres is available to be deposed, the interests of justice require that the prior determination of the court granting summary judgment must be vacated.

After reconsideration of Justice Ponterio's decision and order dated August 30, 2000, it is hereby:

ORDERED, that the motion of Jay and Kelli Abrams to renew their arguments on the [*4]motion which resulted in a decision and order by Justice Frank V. Ponterio of this court dated August 30, 2000 is granted, and upon renewal the motion for summary judgment is denied; and said decision and order is hereby set-aside; and it is further

ORDERED, that the note of issue in this matter is struck and that the Clerk is directed to restore this matter to the pre-trial calendar of this court and part; and it is further

ORDERED, that the parties shall return to DCM Part 3 on Tuesday, September 14, 2010 at 9:30 a.m. to set an expedited discovery schedule.

ENTER,

DATED: August 23, 2010

Joseph J. Maltese

Justice of the Supreme Court