Harmitt v Riverstone Assoc.

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Harmitt v Riverstone Assoc. 2014 NY Slip Op 33480(U) December 11, 2014 Supreme Court, Kings County Docket Number: 21464/10 Judge: Larry D. Martin Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] 2146412010 Decision and order .. OTO. 12/11/14 Page 1 ot 45 .. fl At an LA.S. Trial Tenn, P~ 41 ofthe Supreme Court -cl the State ofNew York, held in and for the County of Kings, at the Courthouse, located at Civic Center, Borough of Brooklyn, City and State of New York, on the lJ.!day of December, 2014. PRESENT: Hon. LARRY D. MARTIN, J.S.C. MARGARET HARMITT, PLAINTIFF, Motion Sequence #3 -VSINDEX No. 21464/10 RIVERSTONE ASSOCIATES a/k/a RIVERSTONE ASSOCIATES, LLC, DEFENDANT. The following papers numbered l to 4 read on this motion Notice of Motion - Order to Show Cause and Affidavits (Affirmations) Annexed Papers Numbered ~-~~~------~ Answering Affidavit (Affirmation) ----~~-~---~-- Reply Affidavit (Affirmation) _ _ _ _ _ _ _ _ _ _ _ _- - ' - - Upon the foregoing papers, plaintiff Margaret Hannitt ("plaintiff'') moves for an order, pursuant to CPLR 222l(d), granting leave to reargue this Court's September 25, 2013 decision and order (the "prior order") granting defendant Riverstone Associates a/k/a Riverstone Associates, LLC's ("defendant") motion for summary judgment dismissing the complaint as asserted against it and, upon reargument, denying defendant's motion. Notably, motions for reargument and renewal shall be identified specifically as such (see CPLR 2221 [d] [1], [e] [l]). Although plaintiffs counsel's affinnation submitted in support of the instant motion is tenned as an "Affinnation in Support of Motion for Leave to Reargue/Renew a Prior Motion Pursuant to CPLR § 2221(d)", the Court deems the instant motion as one for reargument, as is noted on the Notice of Motion cover-page. Moreover, the arguments asserted therein pertain to reargument. Printed· 3/20/2015 [* 2] 21464/2010 Decision and order , DTD" 12/11114 Page 2 of 45 " f ,. As an initial matter, the Court deems the instant motion timely as it was made (see CPLR 2211; Rivera v Glen Oaks Village Owners, Inc., 29 AD3D 560, 561 [2d Dept 2006]), on November 25, 2013, within 30 days of service of the prior order with notice of entry on November 7, 2013 (see CPLR 2221 [d] [3 ]). However, plaintiff fails to annex the underlying papers submitted in support of and in opposition to the underlying motion (see Cohen v Romanoff, 27 Misc3d 1208[A], *6 [Sup Ct, Kings County 2010]; see also Sheedy v Pataki, 236 AD2d 92, 97 [3d Dept 1997]). Despite this procedural deficiency, the Court will entertain the instant motion and will address it on the merits. It is well settled that a motion for reargument is addressed to the sound discretion of the trial Court (see Biscone v JetBlue Airways Corp., 103 AD3d 158, 180 [2d Dept 2012]) and may be granted upon a showing that the Court overlooked or misapprehended the relevant facts or misapplied any controlling principle of law in determining the prior motion (CPLR 2221[d][2]; McGill v Goldman, 261AD2d593, 594 [1999] citing Pahl Equip. Corp. v. Kassis, 182 A.D.2d 22 [1992]). Nevertheless, a motion for reargument should not be used as a vehicle to permit an unsuccessful party to argue once again the very questions previously decided (Foley v Roche, 68 AD2d 558, 567 [1979]). Based upon a review of the parties' contentions and the applicable law, the Court hereby grants plaintiffs motion to the extent of granting leave to reargue the prior order and, upon reargument, the Court adheres to its prior determination granting defendant's motion for summary judgment dismissing the complaint herein. The Court notes that in its prior order, it inadvertently described three feet of snow as twentyfour inches rather than thirty-six inches. More specifically, in its prior order, the Court stated that, in opposition to the underlying motion, "[p ]laintiffpoints to her deposition testimony that the [snow] embankment [,on the subject sidewalk where she fell,] was around 3 feet height (or twenty-four 2 Pnnted· 312012015 [* 3] 2146412010 DeC!SIOn end order ,OTO 12/11/14 Page 3 of 45 . . . inches [24"]) but only twenty inches (20") of snow fell according to the climatology report." This discrepancy does not preclude the granting of an award ofjudgment as a matter oflaw in defendant's favor under the storm in progress doctrine (see Smith v Christ's First Presbyt. Church ofHempstead, 93 AD3d 839, 839-840 [2d Dep 2012]). It is undisputed that, approximately just before 7:30 a.m. on February 27, 2010, plaintiff fell on the sidewalk abutting the premises located at 300 Riverdale Avenue in Brooklyn, New York. Defendant satisfied its initial burden of proof by its submission of a certified climatology report and pointing to the deposition testimony of Felipe Suarez, the superintendent of the subject premises, demonstrating that the storm in progress rule is applicable to the case at bar. Defendant also that it had no notice of the allegedly dangerous condition which caused plaintiffs accident. In opposition, plaintiff failed to submit sufficient evidence in admissible form to raise a triable issue of fact (see Zuckerman v City ofNew York, 49 NY2d 557, 562 [1980]). Whether the snowfall ended the night before the subject accident, as was argued by plaintiffs counsel (Riso aff, ~ 9, of the underlying motion), or at 3 :00 a.m. in the morning on the date of plaintiffs accident, as was argued by defendant (Aronof aff, exhibit F of the underlying motion), the Court adheres to its prior determination holding that"[d]efendant did not have a sufficient period of time to ameliorate the alleged hazard under the 'storm in progress' rule." Notably, pursuant to Administrative Code § 16-123(a), owners of abutting properties have four hours from the time the precipitation ceases, excluding the hours between 9:00 p.m. and 7:00 a.m. to clear ice and snow from the sidewalk" (Schron v Jean's Fine Wine & Spirits, Inc., 114 AD3d 659 [2d Dept 2014 ], internal citation and quotation marks omitted). In this regard, plaintiffs contention that "the difference between the piled snow and the snow fall was not a mere 4 [four] inches which could have occurred naturally but 16 inches which could not have been caused naturally along the entire sidewalk ... " (Plaintiffs Affirmation in Support,~ 9) is entirely speculative 3 Pnnted 3/20/2015 [* 4] 2146412010 Decision 8/'ld order DiD 12/11/14 Page 4 of 45 in...nature (see Dowden v Long lsl~nd Rail Rd., 305 AD2d 631 [2d Dept 2003])." Accordingly, plaintiffs motion is granted to the extent that leave to reargue the Court's prior order is granted and, upon reargument, the Court adheres to its prior determination granting defendant's motion for summary judgment dismissing the complaint herein. The foregoing constitutes the decision and order of the Court. ENTER, ~ For Clerks use only MG~· OEC112Dl4 ( HON.LAD.~· MD Motion Seq.# J.S.C. ~,') EJV - rev 11-04 4 / Pnoted- 3'2012015

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