Priore v 33 Terrace Place Realty, LLC
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Priore v 33 Terrace Place Realty, LLC 2021 NY Slip Op 32012(U) April 30, 2021 Supreme Court, Westchester County Docket Number: 63190/2018 Judge: Linda S. Jamieson Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] WESTCHESTER COUNTY CLERK 04/30/2021 02:12 PM To commence the statutory timeRECEIVED period for appeals as NYSCEF: 04/30/2021 of right (CPLR § 5513 [a]), you are advised to serve a copy of this order, with notice of entry, upon all parties. NYSCEF DOC. NO. 76 Disp ____ INDEX NO. 63190/2018 Dec __x__ Seq. # 3 Type _reargue_ SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER PRESENT: HON. LINDA S. JAMIESON -------------------------------------X DOMENICO PRIORE and JOSEPHINE PRIORE, Index No. 63190/2018 Plaintiffs, DECISION AND ORDER -against33 TERRACE PLACE REALTY, LLC, Defendant. --------------------------------------X The following papers numbered 1 to 4 were read on this motion: Paper Number Notice of Motion, Affirmation and Exhibits 1 Memorandum of Law 2 Affirmation in Opposition 3 Memorandum of Law in Reply 4 Plaintiffs bring their motion to reargue this Court’s December 7, 2020 Decision and Order (the “Decision”) “to the extent that it denied their motion for summary judgment on Plaintiffs’ Labor Law §§ 240(1) claim, and to the extent that it granted summary judgment to Defendant, 33 TERRACE PLACE REALTY, LLC, dismissing Plaintiffs’ Labor Law § 240(1) claim.” In the Decision, the Court held that “In this case, the object that fell, causing plaintiff to fall off the deck to the ground, was a tree branch. There is no evidence to show that if the tree branch had not fallen, plaintiff would still have been 1 of 4 [*FILED: 2] WESTCHESTER COUNTY CLERK 04/30/2021 02:12 PM NYSCEF DOC. NO. 76 INDEX NO. 63190/2018 RECEIVED NYSCEF: 04/30/2021 in danger, simply because he was working at an elevation. The Second Department has explained that ‘An object needs to be secured if the nature of the work performed at the time of the accident posed a significant risk that the object would fall. However, here, it was not the nature of the work that caused an object to fall on the plaintiff. Rather, it was allegedly the defective condition of the ropes in the shaft. Where a falling object is not a foreseeable risk inherent in the work, no protective device pursuant to Labor Law § 240(1) is required.’ McLean v. 405 Webster Ave. Assocs., 98 A.D.3d 1090, 1095–96, 951 N.Y.S.2d 185, 191 (2d Dept. 2012). In this case, the snapping of the tree branch was not a foreseeable risk inherent in the work of an electrician.” The Court further explained that the “case of Seales v. Trident Structural Corp., 142 A.D.3d 1153, 1156, 38 N.Y.S.3d 49, 53–54 (2d Dept. 2016), is instructional. In that action, the Second Department held that ‘the plaintiff must demonstrate that at the time the object fell, it either was being hoisted or secured, or required securing for the purposes of the undertaking. For section 240(1) to apply, a plaintiff must show more than simply that an object fell causing injury to a worker. A plaintiff must show that the object fell because of the absence or inadequacy of a safety device of the kind enumerated in the statute. However, Labor Law § 240(1) does not apply in 2 2 of 4 [*FILED: 3] WESTCHESTER COUNTY CLERK 04/30/2021 02:12 PM NYSCEF DOC. NO. 76 INDEX NO. 63190/2018 RECEIVED NYSCEF: 04/30/2021 situations in which a hoisting or securing device of the type enumerated in the statute would not be necessary or expected.’ That is precisely the case here; no securing or hoisting device for the tree branch would have been expected, or would have helped in this situation. The claims arising under Labor Law § 240(1) are dismissed.” It is well-settled that “A motion for leave to reargue shall be based on matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include matters of fact not offered on the prior motion. The motion does not offer an unsuccessful party, as here, successive opportunities to present arguments not previously advanced.” Pryor v. Commonwealth Land Title Ins. Co., 17 A.D.3d 434, 435–36, h793 N.Y.S.2d 452, 454 (2d Dept. 2005). See also Ahmed v. Pannone, 116 A.D.3d 802, 805, 984 N.Y.S.2d 104, 107 (2d Dept. 2014) (“While the determination to grant leave to reargue a motion lies within the sound discretion of the court, a motion for leave to reargue is not designed to provide an unsuccessful party with successive opportunities to reargue issues previously decided, or to present arguments different from those originally presented.”). “Here, the court did not overlook or misapprehend the [movant’s] arguments,” Vaughn v. Veolia Transp., Inc., 117 A.D.3d 3 3 of 4 [*FILED: 4] WESTCHESTER COUNTY CLERK 04/30/2021 02:12 PM NYSCEF DOC. NO. 76 INDEX NO. 63190/2018 RECEIVED NYSCEF: 04/30/2021 939, 940, 986 N.Y.S.2d 504, 505 (2d Dept. 2014), and, accordingly, the motion to reargue is denied. The foregoing constitutes the decision and order of the Court. Dated: White Plains, New York April 30, 2021 HON. LINDA S. JAMIESON Justice of the Supreme Court To: Reisman Rubeo et al. Attorneys for Plaintiffs 151 Broadway Hawthorne, New York 10532 Law Office of Kevin P. Westerman Attorneys for Defendant 565 Taxter Road, Suite 110 Elmsford, New York 10523 4 4 of 4
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