MITCHELL PHILLIPS AND DALE PHILLIPS, PLAINTIFFS-RESPONDENTS, v MORAN & KUFTA, P.C., JOSEPH J. MORAN, ESQ., RICHARD J. KUFTA, ESQ., DEFENDANTS-APPELLANTS, ET AL., DEFENDANT.

718 CA 07-02711

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT

2008 NY Slip Op 6025;
July 3, 2008, Decided

JUDGES: PRESENT: SCUDDER , P.J., HURLBUTT , SMITH , GREEN , AND GORSKI , JJ.

Order affirmed without costs ”In support of their motion, defendants had the burden of establishing that plaintiffs are unable to prove at least one of those essential elements (see id.). Here, defendants failed to meet that burden inasmuch as, by their own submissions, they raised triable issues of fact "whether discretionary leave to file a late notice of claim against [the County] would have [**3] been available"

DEALY-DOE-EYES MADDUX, Appellant, v RONALD R. SCHUR JR., Respondent.

503708

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT

2008 NY Slip Op 6000
July 3, 2008, Decided

In this legal malpractice action, this Court previously affirmed the denial by Supreme Court (Best, J.) of, among other things, the parties’ motions for summary judgment. Thereafter, a jury trial was convened in December 2005 and, at the close of plaintiff’s proof, the court dismissed the case. In March 2007, plaintiff brought the present motion, purportedly pursuant to, asserting that the court should vacate its prior order of dismissal based upon newly discovered evidence. Opting to treat plaintiff’s motion as one to be relieved from a prior judgment Supreme Court (Aulisi, J.) denied the motion, concluding that plaintiff failed to prove that the evidence would probably have altered the outcome [**2] and that the evidence could not have been discovered earlier. Plaintiff now appeals and we affirm.