Cuevas v Hermes Waste Servs., Corp.

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Cuevas v Hermes Waste Servs., Corp. 2012 NY Slip Op 32656(U) October 11, 2012 Supreme Court, New York County Docket Number: 116822/09 Judge: Louis B. York Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. NNED ON I012212012 [* 1] SUPREME COURT O F THE STATE OF NEW YORK NEW YORK COUNTY 'b MOTION DATE MOTION SEQ. NO. , were read on this motion tolfor The following papers, numbered 1 to Notice of MotionlOrder to Show Cause Answering Affidavits - Affidavits - Exhibits IN W INo(d. IW s ) . - Exhibits Replying Affidavits OGT 19 2012 Upon the foregoing papers, it i ordered that this motion is s I. CHECK ONE: ..................................................................... CASE DISPOSED 0 2. CHECK AS APPROPRIATE: 3. CHECK IF APPROPRIATE: ........................... MOTIONIS: ................................................ GRANTED oGRANTED B'DENIEO IN c SETTLE ORDER ] 0DO NQT POST F-NON-FINA DISPOSITION PART OTHER SUBMIT ORDER 0FIDUCIARY APPOINTMENT REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: IAS PART 2 _ _ _ _ _ _ _ _ _ _ l f _ _ _ _ _________-_________ X _ _ KENNETH CUEVAS, Plaintiff, -againstIndex No. 1 1 6 8 2 2 / 0 9 HERMES WASTE SERVICES CORP., THE DEPARTMENT OF EDUCATION OF THE CITY OF YORK, and NEW YORK CITY SCHOOL CONSTRUCTION AUTHORITY, In this Labor Law action, plaintiff moves, pursuant to CPLR 2221, f o r leave to renew a n d / o r reargue this court's December 21, 2011 Amended O r d e r (the p r i o r order) which dismissed the action against Hermes Waste Services Corp. (Hermes) and denied plaintiff's motion f o r summary judgment as to the Department of Education of the City of New York (DOE) and the New Y o r k City School Construction Authority (CA; together, the City). The City cross-moves, pursuant to CPLR 2221, for leave to reargue the prior o r d e r which granted Hermes's motion for summary judgment, a n d to grant the City's cross motion f o r summary judgment . The Standards CPLR 2221 (d) and (e) provide, as relevant: ( d ) A motion for leave to reargue: 1. shall be identified specifically as such; 1 [* 3] 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 p r i o r motion and written notice of its entry. *** (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. Plaintiff's Motion for Leave to R e n e w and/or Reargue R e a r g u m e n t With Respect to Hemes Plaintiff's motion for leave to r e a r g u e its claim against Hermes is denied. There is no issue of fact or law that the court either overlooked or misapprehended. Plaintiff did not raise or argue his common-law negligence cause of action as against Hermes in the prior motions. his Labor Law §§ Rather, he c o n c e d e d that 200 (which is the codification of common-law negligence) and 240 (1) claims did not lie as against Hermes. Reargument With Respect to the City 2 [* 4] , I Leave to reargue this court s prior order with respect to plaintiff s Labor Law 5 241 (6) claim against the City is denied. Plaintiff does not allege any facts or law that the court overlooked or misapprehended. Rather, plaintiff reiterates much of his same position as he argued in the prior motions. Renewal W i t h R e s p e c t to Hemes Leave to renew is granted, and upon renewal, the court adheres to its prior determination. Although plaintiff now submits the deposition testimony of Antonio Carlos Mendez DaSilva, which was not available at the time that the prior order was under consideration, there is nothing in that testimony that would have changed the prior order. Renewal W i t h Respect to the City Leave to renew with respect to the City is denied. Plaintiff submits no new evidence, but merely repackages his prior arguments in a slightly new way. The City s Cross Motion for Leave t o Reargue The City s cross motion for leave to reargue is denied. The court did not overlook or misapprehend any matter of fact or law when it denied the prior cross motion on the basis that it was untimely, and that the City failed to oppose this contention in any way: it ... offered no showing of good cause f o r the d e l a y , and no contention that the cross motion is based on the nearly identical grounds set forth in the timely motion (the 3 [* 5] . Prior Order, at 13-14). a The City now seeks to present issues and arguments that it could have submitted in the prior motions, but did not. "A motion for leave to reargue ... 'shall not include matters of f a c t not offered on the prior motion' (CPLR 2 2 2 1 [d] [2l; ... 1 . ... The motion does not offer an unsuccessful party successive opportunities to present arguments not previously advanced" (Pryor v Commonwealth Land T i t . I n s . C o . , 1 7 A D 3 d 4 3 4 , 4 3 6 [2d Dept 2 0 0 5 1 ) . Conclusion Accordingly, it is ORDERED that plaintiff's motion 31: leave to renE J is granted with respect to defendant Hermes Waste Services Corp., and upon renewal, the court adheres to its prior determination; and it is further ORDERED that-the plaintiff's motion for leave to renew of the City of New York and the New York City School Construction Authority; and it is further Education of the C i t y of New York and the New York City School Construction Authority f o r leave t d E 4 Dated: October 11, 2012 OCT 19 2012

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