MATTER OF BANOW v. SIMINS

Order, Supreme Court, Bronx County, entered December 18, 1975, granting respondents' cross motion to dismiss appellants' motion to renew, unanimously affirmed, without costs and without disbursements. Appellants are employees of the Bureau of Building Design of the New York City Department of Public Works. They commenced an article 78 proceeding claiming they were improperly "passed over" for promotion. A denial of their petition was affirmed by this court (Matter of Banow v Simins, 46 A.D.2d 844), and their motion for leave to appeal was denied by the Court of Appeals ( 36 N.Y.2d 645). Appellants thereafter brought the instant motion to renew on the basis of newly discovered evidence, to wit, the transfer by their department to another department of a budgetary position to which one of them might have been promoted. While, in certain circumstances, it might be proper for the court of original jurisdiction to entertain a motion to renew based upon newly discovered evidence after the appellate courts have affirmed the original order (see Sheridan v Andrews, 80 N.Y. 648; Henry v Allen, 147 N.Y. 346; Kirkpatrick Home for Childless Women v Kenyon, 209 App. Div. 179, 181), appellants herein have not demonstrated that the newly discovered evidence would have rendered a different result. Nor have appellants shown that with due diligence they could not have produced the evidence at the time of the original petition.

Concur — Stevens, P.J., Markewich, Capozzoli, Nunez and Lynch, JJ.