Andrade v Triborough Bridge & Tunnel Auth.

[*1] Andrade v Triborough Bridge & Tunnel Auth. 2005 NY Slip Op 52110(U) [10 Misc 3d 1063(A)] Decided on November 2, 2005 Supreme Court, Bronx County Salman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 2, 2005
Supreme Court, Bronx County

Arlindo Andrade, Plaintiff,

against

Triborough Bridge and Tunnel Authority, d/b/a MTA Bridges and Tunnel, CITY OF NEW YORK, PERINI CONTRACTING and WARDE ELECTRIC CONTRACTING, INC., Defendants.



14709/2000

Barry Salman, J.

The following motions, all seeking relief pursuant to CPLR 2221, are consolidated for the purposes of this decision and order:

1) motion by defendant Warde Electrical Contracting, Inc. (Warde), and second third-party defendants Transcontinental Insurance and Transportation Insurance (TI&TI) [cumulatively, Warde /TI&TI] for the Court to grant Warde/TI&TI leave to renew and reargue the prior order of this Court, dated April 7, 2005; and, upon such renewal and reargument, for the Court to grant:

a) summary judgment in favor of Wade Electric dismissing all claims, cross-motions and claims of any kind against Warde, and

b) summary judgment in favor of Transcontinental Insurance and Transportation Insurance Company, or reversal of the granting of summary judgment in favor of Westport Insurance Company (Westport) and severance of the claims against insurers Transportation, Transcontinental and Westport. [FN1]2) motion by defendants/ third-party plaintiffs Triborough Bridge and Tunnel Authority (TBTA) and Perini Contracting (Perini) [cumulatively, TBTA/Perini] for leave to reargue that portion of said prior decision of the Court regarding the prior request by Warde for "...'summary judgment on the issue of liability' with respect to Plaintiff Arlindo Andrade's Labor Law Section 241(6) and 200 claims against Warde..[FN2].".

3) motion by plaintiff Arlindo Andrade (Andrade) for leave to reargue plaintiff's prior motion for partial summary judgment in his favor on his claim pursuant to Labor Law Section 240(1), and to reargue the motion by defendant Warde for summary judgment dismissal; and, upon such leave for a grant of summary judgment in his favor on his claim pursuant to Labor Law Section 240(1).

The underlying action was commenced on or about November 9, 1999 by plaintiff to recover damages for personal injuries sustained in a falling accident he suffered while walking back to his personal vehicle, a truck, after completing his 7:00 A.M to 3:00 P.M. work shift on July 16, 1999. Plaintiff has testified at his deposition that as he was walking with several co-workers on the concrete sidewalk adjacent to the roadway of the Triborough Bridge (the bridge) [*2]that was under renovation, he tripped over some "rebar", or "studs", or some other construction debris on the sidewalk[FN3] and fell forward into an open cut into the cement sidewalk surface. Plaintiff testified that he fell some eight to ten feet to a safety netted area below the hole.

Andrade also testified that his accident took place after he completed his daily work for third-party defendant Ahearn Painting Contractors, Inc. (Ahearn), who was a subcontractor on the bridge renovation project. It is uncontested that the bridge is under the ownership of defendant TBTA. It is also conceded that TBTA had contracted Perini to act as the prime contractor for this renovation and re-construction project. It is also unrefuted that Ahearn (for painting and related clean-up), Warde (for electrical wiring and conduit work), Consoer Townsend [CT](for work inspections) and other sub-contractors were hired by Perini to undertake work in the over-all bridge renovation project.

On April 7, 2005, this Court issued a decision and order determining a series of motions and cross-motions made by certain of the parties. It is this order, which was filed with the clerk of the court on April 14, 2005, which the above noted parties seek to attack. Records establish that defendant Warde served a copy of this Court's April 7, 2005 order, with Notice of Entry, upon all of the parties on April 19, 2005.(See Warde's in Oppos. to Pl.'s Motion Ex. A - copy of decision, with notice of entry and affidavit of service).

The Court records further establish that both the Warde motion and the TBTA motion were made on May 19, 2005[FN4]. The Warde motion was made returnable on June 10, 2005 and the TBTA motion returnable June 8, 2005. There is no indication or claim that the plaintiff ever requested additional time from the Court to make the pending motion. The affidavit of service attached to the motion by plaintiff gives the date of service as June 17, 2005.

A review of the papers presented indicates that none of the three pending motions present any new or additional evidence pertaining to the facts of the underlying accident before the Court which were not previously available and/or were presented to the Court for its determination of the April 7, 2005 motion and cross-motions. The Court notes that TI&TI, present co-movants with defendant Warde, were not listed as co-movants on the prior cross-motion papers submitted on behalf of Warde only which led to the April 7, 2005 decision and order.

No papers taking any position have been forthcoming to the Court from third-party defendant-insurer Westport.

CPLR Section 2221[FN5] - Leave to renew and reargue: [*3]

It is well settled that a motion to reargue is addressed to the discretion of the court and may be granted upon a showing that the court overlooked or misapprehended the facts or misapplied the relevant law or for some other reason improperly decided the prior motion. Hoey-Kennedy v. Kennedy, 294 AD2d 573 (2nd Dept., 2002); Long v. Long, 251 AD2d 631 (2nd Dept., 1998); Foley v. Roche, 68 AD2d 558 (1st, Dept., 1979) and, generally, CPLR 2221(d).). Equally well settled is the rule that a motion to reargue is not a means by which the unsuccessful party can obtain a second opportunity to argue issues previously decided or to [*4]present new or different arguments relating to previously decided issues. (See, McGill v. Goldman, 261 AD2d 593 (2nd Dept., 1999); Pahl Equipment Corp. v. Kassis, 182 AD2d 22 (1st Dept., 1992), et al.).

Thus, a motion to reargue made pursuant to CPLR 2221 is not a proper vehicle for a moving party to alter a previously held position or to introduce a new "theory" of the case. As recently stated by the First Department, Appellate Division, in DeSoignies v. Cornasesk House Tenants' Corp., AD3d , 800 N.Y.S.2d 679 (decided September 01, 2005):

"Reargument is not available where the movant seeks only to argue a new theory of liability not previously advanced' (Frisenda v X Large Enters., 280 AD2d 514, 515 [2001]; see Pahl Equip. Corp. v Kassis, 182 AD2d 22, 27 [1992], lv dismissed 80 NY2d 1005 [1992])."

The purpose of a motion for reargument is to afford a party an opportunity to demonstrate that the court overlooked or misapprehended the law or facts pertinent to the original motion (CPLR 2221[d][2]; Andrea v. E.I. Du Pont de Nemours & Co., 289 AD2d 1039, 1040-1041). To quote from Foley, supra: "Its purpose is not to serve as a vehicle to permit the unsuccessful party to reargue once again the very questions previously decided" (Foley v. Roche, 68 AD2d at 567; see also, Andrea v. E.I. Du Pont de Nemours & Co., 289 AD2d 1039,1040-1041; Pahl Equip. Corp. v. Kassis, supra; and also, Bankers Trust Co. of California v. Payne, 188 Misc 2d 726, 729; Ulster Savings Bank v. Goldman, 183 Misc 2d 893, 894; American Trading Co., 87 Misc 2d at 195).

With respect to a motion for renewal, the Second Department, Appellate Division opined in Goetschius v. Board of Educ. of the Greenburgh Eleven Union Free School District., 281 AD2d 418, 721 N.Y.S.2d 271 ( March 5, 2001) that: "...'It is well settled that a motion for leave to renew must be supported by new or additional facts which, although in existence at the time of a prior motion, were not known to the party seeking renewal, and, consequently, not made known to the court' (Matter of BrooklynWelding Corp. v Chin, 236 AD2d 392; see, Foley v Roche, 68 AD2d 558, 568; CPLR 2221).". (see also, Matter of M. Kraus, Inc., 229 AD2d 347, 645 N.Y.S.2d 304, (1 Dept., 1996) and In re Wasserman, 269 AD2d 533 (2 Dept., 2000).).

Procedurally, it is noteworthy that this particular statute requires that, when a movant submits a single motion that seeks to both renew and reargue, movant must take special care to identify and support each individual item of relief separately. Specifically, CPLR 2221 (f) directs that:"...A combined motion for leave to reargue and leave to renew shall identify separately and support separately each item of relief sought. The court, in determining a combined motion for leave to reargue and leave to renew, shall decide each part of the motion as if it were separately made. If a motion for leave to reargue or leave to renew is granted, the court may adhere to the determination on the original motion or may alter that determination. ". [See also, Giardina v. Parkview Court Homeowners', 284 AD2d 953, 730 NYS2d 585 (4th Dept., 2001);Seltzer v. City of New York, 288 AD2d 207, 732 NYS2d 364 (2nd Dept., 2001).].

A party is permitted to move for reargument within thirty (30) days after service upon him of a copy of the order determining the prior motion or cross-motion, with [*5]notice of entry pursuant to CPLR 2221(d)(3). CPLR 2221, entitled "Motion affecting prior order", states at subsection (d)(3) that a motion for leave to reargue "...shall be made within thirty days after service of a copy of the order determining the prior motion and written notice of its entry. This rule shall not apply to motions to reargue a decision made by the appellate division or the court of appeals." (Emphasis added by this Court. See also, fn. 4; and Glicksman v. Board of Education, 278 AD2d 364 (2nd Dept., 2000.).

Where the records adduced establish that a motion to reargue was made more than thirty (30) days after a copy of the decision with notice of entry was served on movant - and there has not been a showing that movant asked and received leave from the court for an extension of time to make said motion, the movant's request to reargue is clearly untimely under the operative statute. The Court relies, inter alia, on the law as stated in Pearson v. Goord, 290 AD2d 910 (3rd Dept, 2002)::

"...A motion to reargue must be made within 30 days after service of a copy of the prior order with notice of entry (see, CPLR 2221 [d] [3]; see also, Matter of Glicksman v Board of Educ./Cent. School Bd. of Comsewogue Union Free School Dist., 278 AD2d 364). Our review of the record reveals that petitioner's motion papers were not filed until after the 30-day limitations period had expired. Accordingly, we find that the motion was properly dismissed as time barred..". (See also, Luna v. Port Authority of New York and New Jersey, 21 AD3d 324, 800 N.Y.S.2d 170 (1st Dept. 2005) and In re Ida Q.,11 AD3d 785, 783 N.Y.S.2d 680 (4th Dept., 2004.).).

CONCLUSIONS

After careful review of the papers now presented, and the law set forth by our statutes and as interpreted by our appellate courts, the balance of the pending motions are decided as follows:

1) the motion by Warde /TI&TI:

At the outset, the Court finds that this pending motion presents no new, previously unavailable, evidence not already before this Court. Nor does it offer any applicable newly decided law which would change, alter or reverse the April 7, 2005 order of the Court. The Court further finds the contention relied upon by movants Warde /TI&TI that the very April 7, 2005 order somehow created the new law under which movants now seek to reargue said order to be both unpersuasive and totally without support in our appellate law.

The Court further finds the attempts of co-movants TI&TI, at this late date, to join movant Warde's motion to "renew and reargue" the prior order of this Court to be questionable and contrary to the spirit, if not the letter, of the law stated in CPLR 2221. It is well settled that a motion for reargument is not available where the movant seeks only to argue a new theory or change its position. Nor is it a proper vehicle to seek relief which was beyond that sought in the underlying motion papers.( See, DeSoignies v. Cornasesk House Tenants' Corp, supra, et al.)

Procedurally, the Court notes the present motion by Warde/TI&TI states that it is to renew and to reargue. A review of the papers demonstrate that, while these movants give scant recognition of the statutory requirement to identify separately and support separately [*6]each item of relief sought in such a double-edged single-motion[FN6], the body of the motion, and indeed the "wherefore" clause at the end thereof, clearly joins the concepts of renewal and reargument together[FN7]. Hence, the Court finds that the drafting of the pending motion is thus procedurally flawed. (See, CPLR 2221, fn 5, supra, and also. Giardina v. Parkview Court Homeowners', supra; Seltzer v. City of New York, supra, et al.].

More importantly, the Court finds that movants have not showed that the Court overlooked or misapprehended the facts or misapplied the relevant law or for some other reason improperly decided the prior motion.(See Hoey-Kennedy v. Kennedy, supra; Long v. Long, supra; Foley v. Roche, supra; Andrea v. E.I. Du Pont de Nemours & Co., supra, et al.).

Therefore, for all of the above reasons, the pending Warde/TI&TI motion to renew and reargue is denied. The April 7, 2005 decision and order of the Court in which it found that Warde had sustained its case for summary judgment dismissal of the claims made against it by plaintiff under Labor Law Sections 240(1), 241(6), 200 and common law negligence and that said case for summary judgment dismissal was not overcome by plaintiff Andrade remains in place, with the consequent order of the Court which granted Warde dismissal of all claims made against it in the plaintiff's complaint under those theories stands unaltered.

2) the motion by TBTA:

The Court finds that the pending motion by TBTA presents no new, previously unavailable, evidence not already before this Court. Nor does it offer any applicable newly decided law which would change, alter or reverse the April 7, 2005 order of the Court.

The Court again notes that the present motion by TBTA states on its cover-sheet that it is "TO RENEW AND REARGUE". A review of the papers demonstrate that the movants give no apparent recognition of the statutory requirement to identify separately and support separately each item of relief sought in such a double-edged single-motion. Hence, the Court finds that this pending motion too is thus procedurally flawed and that it is not properly drafted. (See, CPLR 2221, fn 5, supra, and also. Giardina v. Parkview Court Homeowners', supra; Seltzer v. City of New York, supra, et al.].

More importantly, the Court finds that movant TBTA has failed to show that the Court overlooked or misapprehended the facts or misapplied the relevant law or for some other reason improperly decided the prior motion.(See Hoey-Kennedy v. Kennedy, supra; Long v. Long, supra; Foley v. Roche, supra; Andrea v. E.I. Du Pont de Nemours & Co., supra, et al.)

Therefore, for all of the above reasons, the pending TBTA motion to renew and reargue is denied.

3) the motion by plaintiff Andrade:

At the outset, the Court finds that the clear record before the Court establishes that the present motion by plaintiff was not timely made pursuant to the thirty-day time limit set forth in CPLR 2221. It is uncontraverted that plaintiff did not even fax papers pertaining to his making such a motion until June 13, 2005 - a week after the original June 8, 2005 return date of the TBTA motion, and three days after the initial return date on the [*7]Warde/TI&TI motion. The motion papers themselves annex an affidavit of service giving the service date as June 17, 2005. This is approximately fifty-five (55) days after the date given on the affidavit presented by Warde to establish when they went about serving a copy of the April 7, 2005 order, with notice of entry, to all relevant parties. (See Warde's in Oppos. to Pl.'s Motion Ex. A - copy of decision, with notice of entry and affidavit of service).

Plaintiff's last minute claim, made in his reply papers to TBTA's in opposition, i.e., that he never received a copy of the April 7, 2005 order, is unpersuasive in light of the unrefuted fact that plaintiff never before came before the Court to seek an extension of time to make a motion under CPLR 2221. Nor did plaintiff ever previously claim that the service of said papers upon him by Warde was faulty, defective or incomplete.

The Court finds that the pending motion by plaintiff presents no new, previously unavailable, evidence not already before this Court. Nor does it offer any applicable newly decided law which would change, alter or reverse the April 7, 2005 order of the Court. Further, the Court finds that plaintiff has failed to show that the Court overlooked or misapprehended the facts or misapplied the relevant law or for some other reason improperly decided the prior April 7, 2005 motion.(See Hoey-Kennedy v. Kennedy, supra; Long v. Long, supra; Foley v. Roche, supra; Andrea v. E.I. Du Pont de Nemours & Co., supra, et al.)

More particularly, the Court finds that plaintiff has not showed that the Court overlooked or misapprehended the facts or misapplied the relevant law, or for some other reason improperly determined, that the accident in which plaintiff sustained his injuries did not take place while plaintiff was actually engaged in work involving a gravity-related risk at the time of the accident to put him within the protection of Labor Law Sections 240(1) and/or 241(6). Upon careful reading of the very cases relied upon by plaintiff for support in the making of the pending motion, the Court finds said cases either clearly distinguishable from the facts of plaintiff's case, if not in direct opposition to plaintiff's demands for relief.

Plaintiff appears to place great weight on the decision of the First Department, Appellate Division in O'Connor v. Lincoln Metrocenter Partners, L.P., 266 AD2d 60, 698 N.Y.S.2d 632 (1st Dept.,1999). Plaintiff's own pre-trial deposition testimony establishes that his accident occurred at a location separate and away from the portion of the construction site where he did his painting job for Ahern. Plaintiff's testimony also states that the accident took place after his regular painting-job assignment was finished for the day and while as he was walking with friends and co-workers to get to his vehicle to go home. Conversely, in O'Connor v. Lincoln Metrocenter Partners, L.P., supra, the First Department, Appellate Division, found that there was no issue that plaintiff O'Connor fell as he walked across the 19th floor of the building under construction after O'Connor had been assigned the job-task of stripping forms from recently poured concrete of the 24th floor. The appellate court also stated, and relied on the finding, that "[O'Connor's]...[a]ccess to the work site was gained by elevator and a stairway leading up from the 19th floor. While crossing the 19th floor from the elevator, plaintiff [O'Connor] fell...". Consequently, and tellingly, the First Department, Appellate Division reversed the lower court's decision denying O'Connor the benefit of the strict liability protection of the Labor Law and concluded that: "...Plaintiff [O'Connor] was clearly acting at the direction of his employer, and was present at the construction site as a person employed in the erection of a building or structure within the contemplation of Labor Law § 240 (1) ( cf., Jock v Fein, 80 [*8]NY2d 965 [employee not engaged in construction of building or structure]; Higgins v 1790 Broadway Assocs., 261 AD2d 223 [elevator repair plainly outside scope of porter's employment])....".

Consistent with this Court's April 7, 2005 decision and order, the admissible evidence adduced in the matter now before the Court, and the decision of the First Department, Appellate Division in O'Connor v. Lincoln Metrocenter Partners, L.P., supra, this Court continues to find that plaintiff Andrade was not acting at the direction of his employer, nor was he present at the location as a person employed in the erection or renovation of a building or structure within the contemplation of Labor Law, when his accident took place. Rather, the evidence adduced leaves no issue that plaintiff Andrade had left his own job site, had finished his work assignment for the day, was not under the direction of his employer and that he was walking to his vehicle on his way home when his accident took place. Hence, the Court finds that there is no issue that plaintiff was not entitled to the benefit of the strict liability protections provided under Labor Law Sections 240(1) and/or 241(6) relative to the accident involved in this complaint.

For all of the above, the plaintiff's pending motion is denied.

This constitutes the decision and order of the Court.



Dated November 2, 2005______________________

J.S.C. Footnotes

Footnote 1: Items a, b, and c quoted directly from the "wherefore" clause at the end of Warde/TI&TI's moving papers.

Footnote 2:Quoting from TBTA/Perini's papers at notice of motion, p.2 .

Footnote 3: See, specifically, Warde Ex. C - Pl.'s EBT, at pp. 100-103, 126.

Footnote 4:Note affidavits of service annexed to each motion bearing the date of May 19, 2005.

Footnote 5: CPLR Rule 2221. Motion affecting prior order : (a) A motion for leave to renew or to reargue a prior motion, for leave to appeal from, or to stay, vacate or modify, an order shall be made, on notice, to the judge who signed the order, unless he or she is for any reason unable to hear it, except that: 1. if the order was made upon a default such motion may be made, on notice, to any judge of the court; and 2. if the order was made without notice such motion may be made, without notice, to the judge who signed it, or, on notice, to any other judge of the court. (b) Rules of the chief administrator of the courts. The chief administrator may by rule exclude motions within a department, district or county from the operation of subdivision (a) of this rule. ( c ) A motion made to other than a proper judge under this rule shall be transferred to the proper judge. (d) A motion for leave to reargue: 1. shall be identified specifically as such; 2. shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion; and 3. shall be made within thirty days after service of a copy of the order determining the prior motion and written notice of its entry. This rule shall not apply to motions to reargue a decision made by the appellate division or the court of appeals. (e) A motion for leave to renew: 1. shall be identified specifically as such; 2. shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination; and 3. shall contain reasonable justification for the failure to present such facts on the prior motion. (f) A combined motion for leave to reargue and leave to renew shall identify separately and support separately each item of relief sought. The court, in determining a combined motion for leave to reargue and leave to renew, shall decide each part of the motion as if it were separately made. If a motion for leave to reargue or leave to renew is granted, the court may adhere to the determination on the original motion or may alter that determination.

Footnote 6:See Warde/TI&TI moving papers at items 21 and 22.

Footnote 7:See fn.1, supra.