Luna v. Ponce Funeral Homes, Inc., 176 A.D.3d 1193 (2019)
This case concerned an action for damages for breach of contract and negligence against a funeral home as the result of alleged mishandling of the remains of the plaintiff’s deceased spouse. The defendant funeral home brought a third party action against American Airlines, which had transported the remains. After the trial court granted the defendant’s motion for summary judgment because the plaintiff failed to oppose, the plaintiff moved to vacate the summary judgment order on the ground of an expert’s affidavit it characterized as newly discovered evidence. The Appellate Division affirmed the trial court’s decision to deny the motion to vacate, agreeing that an affidavit created after the summary judgment order did not qualify as newly discovered evidence.