Fowler v. St. Luke's Memorial Hospital Center

Judgment unanimously affirmed without costs. Memorandum: Plaintiff commenced this action to recover damages for injuries she sustained when she allegedly slipped and fell on water on the floor of a patient’s room in defendant hospital. Supreme Court properly granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiffs cross motion for summary judgment. Defendant established that it had no actual or constructive notice of the water on the floor and plaintiff failed to raise a triable issue of fact (see, Kane v Human Servs. Ctr., 186 AD2d 539, 540, lv denied 82 NY2d 657).

The court also properly denied plaintiffs motion for renewal of the motion and cross motion. Plaintiff failed to offer a justifiable excuse for failing to submit the additional evidence supporting the motion for renewal at the time of the original motion and cross motion (see, Conley v Central Sq. School Dist., 255 AD2d 981). “[A] justifiable excuse will be deemed absent where the new facts were capable of being discovered at the time the original motion was made” (Matter of Dyer v Planning Bd., 251 AD2d 907, 910, appeal dismissed 92 NY2d 1026, lv dismissed 93 NY2d 1000). Here, the identities of the witnesses who submitted affidavits in support of renewal were capable of being discovered at the time of the original motion and cross motion. (Appeal from Judgment of Supreme Court, Oneida County, Grow, J. — Summary Judgment.) Present — Green, J. P., Wisner, Kehoe and Lawton, JJ.