Opinion
September 30, 1997
Appeal from Order of Supreme Court, Onondaga County, Murphy, J.
Present — Green, J.P., Lawton, Wisner, Balio and Boehm, JJ.
Supreme Court did not abuse its discretion in denying the motion of plaintiff to renew his prior motion for summary judgment. Even assuming, arguendo, that testimony from examinations before trial conducted after the prior motion was denied constitutes newly discovered evidence, we conclude that the court properly determined that the newly discovered evidence did not warrant a different result (see, Laxrand Constr. Corp. v R.S.C.A. Realty Corp., 136 A.D.2d 685, 686, lv denied 71 N.Y.2d 804; Matter of Banow v. Simins, 53 A.D.2d 542). That evidence conflicts with an affidavit submitted in opposition to the prior motion, presenting credibility issues that render summary judgment inappropriate (see, Capelin Assocs. v. Globe Mfg. Corp., 34 N.Y.2d 338, 341; Mickelson v. Babcock, 190 A.D.2d 1037, 1038).