Bennett v. Feldman , 543 N.Y.S.2d 335 ( 1989 )

In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Queens County (Graci, J.), dated November 6, 1987, which granted the plaintiffs’ motion for renewal and, upon renewal, vacated its prior order granting summary judgment to the defendants and denied the defendants’ motion for summary judgment.

Ordered that the order is modified by deleting therefrom the provision which, upon renewal, vacated the prior order granting summary judgment to the defendants and denied the defendants’ motion for summary judgment and substituting therefor a provision adhering to the original determination; as so modified, the order is affirmed, without costs or disbursements.

In view of the plaintiffs’ difficulties in contacting the alleged eyewitness, despite apparently diligent efforts, we find that the plaintiffs’ motion for renewal was properly granted. Upon renewal, however, the original grant of the defendants’ motion should have been adhered to because the plaintiffs failed to set forth any evidence of negligence on the part of the defendants. Kooper, J. P., Spatt, Harwood and Rosenblatt, JJ., concur.