Curry v County of Suffolk

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Curry v County of Suffolk 2021 NY Slip Op 33522(U) April 16, 2021 Supreme Court, Suffolk County Docket Number: Index No. 609596/2018 Judge: Joseph A. Santorelli 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. INDEX NO. 609596/2018 FILED: SUFFOLK COUNTY CLERK 04/16/2021 03:01 PM NYSCEF DOC. NO. 291 RECEIVED NYSCEF: 04/16/2021 INDEX No. No. INDEX 609596/2018 609596/2018 CAL. No. 202000284MV 202000284MV SUPREME ST A TE OF NEW NEW YORK YORK SUPREME COURT COURT - STATE ,, LA.S. I.A.S. PART PART 10 - SUFFOLK SUFFOLK COUNTY COUNTY ,I PRESENT: PRESENT: Hon. MOTION DATE DATE 111/12/20 l/12/20 (006) (006) MOTION MOTION 12/17/20 (007) (007) DATE 12/17/20 MOTION DATE' 1/28/21 (008) MOTION DATE MOTION DA TE __1.:c..:.../=28=/=21'--'('-"'0-"-08"'-')~ 3/4/21 ADJ. DATE DA TE ADJ. MD Mot. Seq.# Seq. # 006 MD # 007 MD '# G # 008 MD MD JOSEPH JOSEPH A. SANTORELLI SANTORELLI Justice of Justice of the Supreme Supreme Court Court ---------------------------------------------------------------X ---------------------------------------------------------------X CELLINO CELLINO & BARNES, BARNES, P.C. Attorney Attorney for Plaintiff Plaintiff Hollow Road, Road, Suite Broad Hollow 532 Broad Suite 107 New York York 11747 Melville New Melville 11747 MICHELLE MICHELLE CURRY, CURRY, DENNIS COHEN, ESQ. DENNIS M. COHEN, ESQ. SUFFOLK COUNTY COUNTY ATTORNEY SUFFOLK ATTORNEY 100 Veterans Veterans Memorial Memorial Highway Highway P.O. Box Box 6100 6100 Hauppauge, York 11788 Hauppauge, New New York Plaintiff, Plaintiff, MARTYN MARTYN SMITH SMITH & MURRAY MURRAY MARTYN MARTYN Attorney GMOS Attorney for Defendant Defendant GMOS Suite 405 150 Motor Motor Parkway, Parkway, Suite Hauppauge, New York York 11788 Hauppauge, New against- - against COUNTY OF SUFFOLK, TOWN OF '", ', COUNTY SUFFOLK, TOWN BABYLON, GMOS GMOS LIMITED LIMITED PARTNERSHIP, BABYLON, PARTNERSHIP, WINTERS BROS. SYSTEMS OF WASTE SYSTEMS WINTERS BROS. WASTE LONG ISLAND, ISLAND, LLC., LLC., and and WINTERS WINTERS BROS. BROS. LONG RECYCLING CORP., CORP., ·. RECYCLING GORDON GORDON & REES, REES, LLP Attorney Attorney for Defendant Defendant Winters Winters 18 Columbia Columbia Turnpike, Turnpike, Suite Suite 200 200 Florham Park, Park, New New Jersey Jersey 07931 Florham LEWIS JOHS JOHS AVALLONE AVALLONE & A AVILES LEWIS VILES Attorney Attorney for Defendant Defendant Town Town of of Babylon Babylon One CA CA Plaza, Plaza, Suite Suite 225 One Islandia, New New York York p749 11749 Islandia, Defendants. Defendants. _____________________________________ ~ ---------X -------------------------------------- ---------- --------------X [* 1] 1 of 5 INDEX NO. 609596/2018 FILED: SUFFOLK COUNTY CLERK 04/16/2021 03:01 PM NYSCEF DOC. NO. 291 RECEIVED NYSCEF: 04/16/2021 Curry v County County of of Suffolk Suffolk Curry 609596/20188 Index No. 609596/201 Page Page22 to leave to for leave and for answer, and amend answer, judgment to amend Upo~ summary judgment, motions for summary e-filed motions these e-filed read on these papers read follo~ing papers the follo~ing Upo~ the by 2020: 16, October dated County, defendant papers reargue : NO~lce of MotIOn/Order Show Cause and supporting papers by defendant County, dated October 16, 2020; by supporting and Cause Show to r reargue : No~1ce of Motion/Orde and Motion and Cross Motion of Cross Notice of 2020; Notice December 30, defend~nt 30,2020; dated December Town, dated defendant Town, by defendant 2, 2020: by December 2,2020; date~ December Bros., dated Wmter Bros., defend~nt Wmter plaintiff, by 2021: 6, supportmg papers _; Answering Answering Affidavits Affidavits and and supporting supporting papers papers by defendant defendant Winter Winter Bros., Bros., dated dated January January 6,2021; by plaintiff, papers~; supporting and Affidavits and Replying Affidavits 2021 ; Replying 21, 2021 January 21, dated January Town, dated dated 8. 2021, January 18, 2021; defendant Town, 2021: by defendant dated _January and dated 2021, and J~nuary 8, dated J~nuary dated and 2021, 27, January dated Town, supportmg papers papers by by defendant defendant Winter Winter Bros., Bros., dated dated January January 27, 27,2021; defendant Town, dated January 27, 2021, and dated 2021: by defendant supporting it is 2021;; Other_; March 4, 2021 January defendant County, County, dated dated March Other_; 2021: by defendant 27, 2021; January 27, ion; and it is this determinat purposes of this ORDERED that consolidatedd for purposes determination; is hereby consolidate motions are hereby these motions that these ORDERED .. further further .. judgment dismissing ORDERED that that the the motion motion by defendant defendant County County of Suffolk Suffolk for summary summary judgment dismissing the the ORDERED denied; and it is further against it is denied; complaint further claims against cross claims the cross complaint and the LLC and ORDERED that that the the motion motion by defendants defendants Winters Winters Bros. Bros. Waste Waste Systems Systems of of Long Long Island, Island, LLC and ORDERED their them leave Winters Corp. for an order order pursuant CPLR 3025 3025 (b) granting granting them leave to amend amend their pursuant to CPLR Recycling Corp. Bros. Recycling Winters Bros. answer is denied; denied; and it is further further answer ORDERED that that the the motion motion by defendant defendant Town Town of Babylon Babylon for leave leave to reargue reargue its prior prior motion motion for for ORDERED denied. 2020, is denied. November 30, summary judgment, 30,2020, dated November order dated denied by an order was denied which was judgment, which summary arising plaintiff arising sustained by plaintiff allegedly sustained This is an an action action to recover recover damages personal injuries injuries allegedly damages for personal This is front in p.m., 15 9: tely out of of a single-vehi single-vehicle accident which occurred on on July July 11, 2017, 2017, at approxima approximately p.m., in front of of which occurred cle accident out aa building building located located at 513 Acorn Acorn Street Street in defendant defendant Town Town of of Babylon. Babylon. Acorn Acorn Street Street is a two-way two-way street street vehicle that her vehicle her complaint with one lane lane in each each direction, direction, running east and and west. Plaintiff alleges alleges in her complaint that west. Plaintiff running east with one collided with with a dumpster dumpster on the side side of of the road. The The dumpster dumpster was placed placed at the the location location by defendants defendants collided Bros. (Winters Corp. Recycling Corp. (Winters Bros. Bros. Recycling Winters Bros. Winters Systems of of Long Island, LLC and Winters Long Island, Waste Systems Bros. Waste Winters Bros. defendants).. On the the morning morning of of the accident, accident, Ronald Ronald Saager, Saager, a deputy deputy sheriff sheriff in the the Suffolk Suffolk County County defendants) removing Street, Acorn 513 at located building located the building Sheriff s office, office, executed Acorn Street, removing eviction at the of eviction warrant of the warrant executed the Sheriffs premises and into the dumpster. the tenant's from the dumpster. the premises properties from tenant's properties judgment dismissing Defendant County of of Suffolk Suffolk (County) (County) moves summary judgment dismissing the complaint complaint moves for summary Defendant County tal function governmen the of protection and cross cross claims claims against against it on the the ground ground that that it is entitled entitled to the protection of the governmental function and aa was warrant eviction the executed who sheriff immunity defense, because the conduct of the deputy sheriff who executed the eviction warrant was deputy of conduct the because immunity defense, particulars, governmental function. In support, support, the the County County submits, submits, inter inter alia, alia, the the pleadings, pleadings, the the bill of of particulars, tal function. governmen testimony. and the transcripts parties' testimony. the parties' of the transcripts of Town of the Town administrator of waste administrator the solid At his his deposition, deposition, Raoul Raoul Castaneda Castaneda testified testified that solid waste that he is the At Winters with Winters of Babylon. Town entered entered into a waste collection service service agreement agreement with waste collection the Town that the testified that Babylon. He testified of has Town the Bros., which which was effective effective at the time time of of the subject subject accident. accident. According According to the the agreement, agreement, Town has Bros., the Town. Winters dumpsters at commercia commercial l eviction eviction sites. sites. The The dumpsters dumpsters are owned owned by the Town. place dumpsters Bros. place Winters Bros. needed, are dumpsters Castaneda testified testified that that the the sheriff sheriff in charge charge of of the eviction eviction determines determines how how many many dumpsters needed, Castaneda needed are signs or barricades, cones, any when they are needed, where they placed, and whether cones, barricades, signs needed whether and placed, are they when they are needed, where around them. them. The The sheriff sheriff also also determines determines when when the dumpsters dumpsters are removed removed from from the the site. Castaneda Castaneda around that and Street, Acorn 513 on place testified that the day of the accident, an eviction took place Acorn Street, and that he observed observed took eviction accident, the of on testified that [* 2] 2 of 5 FILED: SUFFOLK COUNTY CLERK 04/16/2021 03:01 PM NYSCEF DOC. NO. 291 INDEX NO. 609596/2018 RECEIVED NYSCEF: 04/16/2021 County of of Suffolk Suffolk Curry v County 609596/2018 Index No. 609596/2018 Page 3 dumpsters on the side side of ofthe road when when he arrived arrived at the location. location. He testified testified that that the sheriff sheriff two dumpsters the road decided that the dumpsters dumpsters would would be kept kept overnight. overnight. decided deposition, John John Vodola Vodola testified testified that that he is a driver driver employed employed by Winters Winters Bros. He . At his deposition, testIfied that under under the contract contract with with the Town Town of of Babylon, Babylon, Winters Winters Bros. Bros. delivers delivers roll-off roll-off containers containers for testified ev~ct~on. Those Those ~ontai~ers ~ontai~ers are owned owned by the Town. Town. On every every eviction, eviction, the sheriff sheriff in charge charge of of the ev~ct~on. eVIctIOnwould dI~ect hIm "exactly where to put"the dumpster. On the day of the accident, he dropped evictrnn would di~ect him "exactly where put" the dumpster. of accident, dropped roll-off contamers contamers on Acorn Acorn Street Street and placed them at the direction direction of of the sheriff. sheriff. two roll-off placed them deposition, Saager Saager testified testified that on the day before subject accident, accident, he called called the Town Town At his deposition, before the subject of Babylon Babylon to order order a container container to be placed of the eviction eviction on the following following day. Although Although of placed on the site of recollection as to whether whether he instructed instructed Winters Winters Bros. where where to leave leave the containers, containers, he he had no recollection testified he would would have have instructed instructed that that the containers containers be left alongside alongside the roadway roadway because that was the testified because that containers could could have have been testified that that the container container could could not have have been only place place the containers been placed. placed. He testified been left of the building where the eviction eviction was executed, executed, because because the eviction eviction court court ordered ordered to in the parking parking lot of building where remove the tenant's tenant's property nearest public roadway. Saager Saager testified testified that that two two containers containers were remove property to the nearest public roadway. delivered on the day of of the eviction, eviction, and that that it is not his job warning signs, signs, such as cones, cones, delivered job to place place any warning around containers containers on the the road. He testified testified that that the eviction eviction at 513 Acorn Acorn Street Street was was completed completed at around around 2:30 p.m. Saager Saager explained explained that that when when an eviction eviction is completed completed he typically typically brings copy of of the around brings a copy warrant of of eviction eviction to the Town. Town. He testified testified that that he does does not know know when when the containers containers are picked warrant picked up by Winter Winter Bros. When a negligence negligence claim claim is asserted asserted against against a municipality, municipality, the first issue issue for a court court to decide decide is When whether entity was engaged in a proprietary function or acted acted in a governmental governmental capacity capacity whether the municipal municipal entity was engaged proprietary function time the claim claim arose arose (see Turturro Turturro v City of of New York, 28 NY3d 469,477,4545 NYS3d [2016]; at the time New York, NY3d 469,477, NYS3d 874 [2016]; Marks-Barcia Village of of Sleepy Corps, 183 AD3d AD3d 883, 883,125 Dept Marks-Barcia v Village Sleepy Hollow Hollow Ambulance Ambulance Corps, 125 NYS3d NYS3d 116 [2d Dept Auth. ofN.Y. ofN.Y. & & N.J., AD3d 1264, 109 NYS3d 111 [2d Dept Dept 2019]). 2019]). "A 2020]; Halberstam Halberstam v Port PortAuth. N.J., 175 AD3d NYS3d 111 government entity entity performs when its activities activities essentially essentially substitute substitute for or government performs a purely purely proprietary proprietary role when supplement traditionally traditionally private enterprises" (Applewhite (Applewhite v Accuhealth, 420, 972 NYS2d supplement private enterprises" Accuhealth, Inc., Inc., 21 NY3d NY3d 420, NYS2d Watts v City of of New York, 2020 2020 NY 05084, 2020 2020 NY App. Div. Lexis Lexis 5187 [2d New York, NY Slip Op 05084, NY App. 169 [2013]; see Watts Dept 2020]; 2020]; Granata Granata v City City of of White White Plains, AD3d 1187, 1188, 1188,993 Dept 2014]). 2014]). In Dept Plains, 120 AD3d 993 NYS2d NYS2d 47 [2d Dept instance, the government government entity entity is subject subject to suit under under the ordinary ordinary rules rules of of negligence negligence (see Tara that instance, N.P. v Western Western Suffolk of Coop. Educ. [2017]). In Suffolk Bd. Bd. of Educ. Servs., Servs., 28 NY3d NY3d 709, 713, 49 NYS3d NYS3d 362 [2017]). contrast, a municipality municipality will will be deemed deemed to have engaged in a governmental governmental function function when when its acts contrast, have been been engaged and safety safety of of the public general police are undertaken undertaken for the protection protection and public pursuant pursuant to the general police powers powers (see Applewhite Police and fire protection examples of of long-recognized, long-recognized, Applewhite v Accuhealth, Accuhealth, Inc., Inc., supra). supra). Police protection are examples quintessential governmental governmental functions functions (see Valdez v City of of New York, 18 NY3d New York, NY3d 69, 75, 936 NYS2d NYS2d quintessential Town of of Ramapo, AD3d 921, 921,80 Dept 2018]). 2018]). If the action action 587 [2011]; Santaili Santaiti v Town Ramapo, 162 AD3d 80 NYS3d NYS3d 288 [2d Dept challenged in the litigation litigation is governmental, governmental, the existence existence of of a special special duty is an element element of of plaintiff challenged plaintiffss negligence cause cause of of action action (see Connolly Connolly v Long 719, 70 NYS3d [2018]; negligence Long Is. Power Power Auth., Auth., 30 NY3d NY3d 719, NYS3d 909 [2018]; Lauer of New York, 95 NY2d [2000]). Lauer v City of New York, NY2d 95, 733 NE2d NE2d 184, 711 NYS2d NYS2d 112 [2000]). given the allegations allegations of of negligence negligence contained contained in the complaint, complaint, the Court Court concludes concludes that the First, given County was acting acting in its proprietary capacity when when the deputy deputy sheriff sheriff executed executed the warrant warrant of of eviction eviction in County proprietary capacity [* 3] 3 of 5 INDEX NO. 609596/2018 FILED: SUFFOLK COUNTY CLERK 04/16/2021 03:01 PM NYSCEF DOC. NO. 291 RECEIVED NYSCEF: 04/16/2021 Curry v County County of of Suffolk Suffolk. . Index No. 609596/2018 609596/2018 Page 4 the area of tenant is not within within the of the accident. accident. The County's County's assistance assistance to the landlord landlord in evicting evicting tenant governmental protection and safety public pursuant pursuant to the general police powers powers governmental function function for the protection safety of of the public general police (cf Applewhite v Accuhealth, Accuhealth, Inc., Inc., supra). supra). Given proprietary capacity (cf Applewhite Given that the County County was was acting acting in its proprietary capacity at the time time of placing the of the accident, accident, the next next question question is whether whether the County County was was negligent negligent in placing failed to establish entitlement to judgment judgment dumpster dumpster on the side of of the roadway. roadway. Here, Here, the County County has failed establish its entitlement as a matter matter of of law. There There are several several issues issues of of fact as to whether whether the deputy deputy sheriff sheriff determined determined the subject subject dumpster dumpster would would be left on the road road over over night night after after an eviction, eviction, whether whether the deputy deputy sheriff sheriff created placing the dumpster created an allegedly allegedly dangerous dangerous condition condition by placing dumpster on the side of of the road, road, whether whether the deputy sheriff was negligent .not placing placing any warning warning signs near the dumpster, dumpster, and deputy sheriff negligent in in.not signs near and whether whether the accident plaintiff in failing her vehicle accident was caused caused solely solely by the negligence negligence of of plaintiff failing to operate operate her vehicle in a safe and lawful manner. Thus, the County's motion for summary judgment is denied. manner. Thus, County's motion summary judgment denied. The Winters Winters Bros. Bros. defendants move for an order order pursuant pursuant to CPLR them leave leave defendants move CPLR 3025 (b) granting granting them include the allegation to amend amend their their answer answer to include allegation that the subject subject dumpster dumpster was was owned owned and maintained maintained by the Town. The Winters parties' testimony Winters Bros. Bros. defendants defendants allege allege that the parties' testimony revealed revealed that that the Town Town owned pursuant to the waste waste collection owned the dumpster. dumpster. In opposition, opposition, the Town Town contends contends that that pursuant collection service service agreement between the Town Winters Bros., Bros., the subject was owned maintained by the agreement between Town and and Winters subject dumpster dumpster was owned and maintained Winters Bros. defendants. Winters defendants. Section 2.2.6 2.2.6 of provides, in pertinent pertinent part: part: Section of the agreement agreement provides, "Within months of "Within eighteen eighteen months of the Commencement Commencement Date, Date, all Containers Containers Initially, the Town for CII Refuse Refuse shall shall be new new and mobilized. mobilized. Initially, Town will provide containers provide containers for use by the Contractor Contractor to service service the accounts accounts under the Contract. Contract. Thereafter, months, the under Thereafter, however, however, every every six (6) months, Contractor replace one-third with new Contractor shall shall replace one-third (1/3) of of the Containers Containers with new Containers, with raised account numbers, numbers, identical Containers, with raised welded welded account identical to the numbers being replaced, numbers on numbers on the Containers Containers being replaced, but with with the numbers right comer the upper upper right comer of of the Containers. Containers. At the end of of the Contract, Contract, become the property property of the Town. the Containers Containers shall shall become ofthe Town. All Containers Containers must must be maintained maintained in excellent excellent condition condition by the Contractor Contractor during during the entire entire term term of of the Contract. Contract. All Containers Containers shall shall be maintained maintained in proper proper working working order order by the Contractor. Contractor. Containers Containers shall be steam steam cleaned and and maintained (oiled, re-welded, re-welded, painted, painted, etc.) as needed cleaned maintained (oiled, needed minimum, annually, annually, and Contractor Contractor shall shall submit submit on an and, at a minimum, annual basis, sworn certification certification in a format format acceptable acceptable to the Solid Solid annual basis, a sworn Waste Administrator Administrator certifying certifying that that this cleaning cleaning and maintaining maintaining has Waste been performed, including a list of of all equipment equipment so cleaned cleaned or been performed, including maintained. " maintained." Generally, leave leave to amend amend a pleading "shall be freely given" given" (CPLR (CPLR 3025 [b]), unless Generally, pleading "shall unless the proposed amendment is palpably insufficient as a matter of law, devoid devoid of of merit, merit, or would would prejudice prejudice or proposed amendment palpably insufficient matter of surprise party (see Maldonado Maldonado v Newport Newport Gardens, Inc., 91 AD3d NYS2d 260 surprise the opposing opposing party Gardens, Inc., AD3d 731, 93 9377 NYS2d Dept 2012]; 2012]; Lariviere York City Tr. AUt/I., AD3d 1165, 1165,920 Dept 2011]; 2011]; [2d Dept Lariviere v New New York Auth., 82 AD3d 920 NYS2d NYS2d 231 [2d Dept [* 4] 4 of 5 INDEX NO. 609596/2018 FILED: SUFFOLK COUNTY CLERK 04/16/2021 03:01 PM NYSCEF DOC. NO. 291 RECEIVED NYSCEF: 04/16/2021 County of of Suffolk Suffolk Curry v County 609596/2018 Index No. 609596/2018 Page 5 Gitlin v Chirinkin, Chirinkin, 60 AD3d AD3d 901, 901,875 Dept 2009]). 2009]). However, However, where where the the application application for Gitlin 875 NYS2d NYS2d 585 [2d Dept leave to amend amend is made made long long after after the action action has been certified for trial, trial, judicial discretion in allowing allowing leave been certified judicial discretion amendments should should be discrete, discrete, circumspect, circumspect, prudent, and cautious cautious (see Alter Quality Choice Choice prudent, and Alter v Quality such amendments Healthcare, AD3d 612, 612, 123 NYS3d Dept 2020]; 2020]; Morris Queens Long Healthcare, Inc., Inc., 184 AD3d NYS3d 840 [2d Dept Morris v Queens Long Is. Med. Med. Group, P.e., AD3d 827, 828, 854 N.Y.S.2d Dept 2008]). 2008]). "The "The legal legal sufficiency sufficiency or merits merits of of Group, P.C., 49 AD3d N.Y.S.2d 222 [2d Dept amendment to a pleading will not not be examined examined unless unless the the insufficiency insufficiency or lack lack of of merit merit is a proposed proposed amendment pleading will clear and free from doubt" doubt" (Sample (Sample v Levada, AD3d 465, 465,467-468, 779 NYS2d Dept 2004]). 2004]). Levada, 8 AD3d 467-468, 779 NYS2d 96 [2d Dept clear "Prejudice may be found found where where a party party has has incurred incurred some some change change in position hindrance in the "Prejudice position or hindrance preparation of of its case case which which could could have.been have.been avoided avoided had the original original pleading contained the proposed pleading contained proposed preparation amendment" (Whalen (Whalen v Kawasaki Corp., U.S.A., U.S.A., 92 NY2d 288,680 NYS2d [1998]; Kawasaki Motors Motors Corp., NY2d 288,680 NYS2d 435 [1998]; amendment" Burke, AD3d 1507, 133 NYS3d Dept 2020]). 2020]). Burke, Albright, Albright, Harter Harter & Rzepka Rzepka LLP LLP v Sills, Sills, 187 AD3d NYS3d 130 [[4th 4th Dept Court notes notes that that the the Winters Winters Bros. Bros. defendants defendants have have failed failed to offer offer any any excuse excuse for the delay delay in The Court attempting to amend amend their their answer answer to include include their their allegation allegation that that the the dumpster dumpster was was owned owned and attempting maintained by the Town Town (see Campbell Campbell v Dwyer, AD3d 777, 777, 125 NYS3d 300 [2d Dept Dept 2020]). 2020]). Dwyer, 185 AD3d NYS3d 300 maintained Although the Winters Winters Bros. Bros. defendants defendants indicate indicate that that the the parties' deposition testimony testimony revealed revealed that that the Although parties' deposition dumpster was owned owned by the the Town, Town, the the motion motion to amend amend their their answer answer to reflect reflect the the ownership ownership of of the dumpster dumpster was was filed approximately approximately 10 months months after after the note note of of issue issue was was filed filed and and more more than than 16 months months dumpster Castaneda testified testified in July July 2019 2019 that that the the dumpsters dumpsters are owned owned by the the Town. Town. Moreover, Moreover, in their their after Castaneda prior motion motion to amend amend their their answer answer to include include a "derivative "derivative immunity" immunity" affirmative affirmative defense, defense, the Winters Winters prior Bros. defendants defendants did not not include include the the claim claim regarding regarding the the Town's Town's ownership ownership of of the the dumpster. dumpster. Where, Where, as there has been been an extended extended delay delay in moving moving to amend, amend, the the party seeking leave leave to amend amend must must here, there party seeking establish a reasonable reasonable excuse excuse for the the delay delay (see Burke, & Rzepka Burke, Albright, Albright, Harter Harter & Rzepka LLP LLP v Sills, Sills, supra; supra; establish Alter Quality Choice Choice Healthcare, AD3d 612, 612, 123 AD3d AD3d 840 [2d Dept Dept 2020]). 2020]). Furthermore, Furthermore, Alter v Quality Healthcare, Inc., Inc., 184 AD3d Winters Bros. Bros. defendants defendants failed failed to demonstrate demonstrate that that their their application application for leave leave to amend amend their their answer answer the Winters include the allegation allegation that that the the dumpster dumpster was was owned owned and and maintained maintained by the the Town Town has has any merit, merit, to include because service agreement agreement between between the Town Town and Winters Winters Bros., Bros., the dumpster dumpster was was owned owned because pursuant pursuant to service Dwyer, supra; supra; and maintained maintained by Winters Winters Bros. Bros. at the time time of of the subject subject accident accident (see Campbell Campbell v Dwyer, Canals v Lai, AD3d 626, 626, 17 NYS3d Dept 2015]). 2015]). Accordingly, Accordingly, the the motion motion by the Winters Winters Canals Lai, 132 AD3d NYS3d 311 [2d Dept defendants for leave leave to amend amend their their answer answer is denied. denied. Bros. defendants Finally, the request request by defendant defendant Town Town of of Babylon Babylon for leave leave to reargue reargue is denied, denied, as its Finally, submissions fail to demonstrate demonstrate that that the the Court Court overlooked overlooked or misapprehended misapprehended the the relevant relevant facts facts or submissions misapplied any controlling controlling principle principle of of law law in reaching reaching its determination determination (see Mooney Vecchio, 305 misapplied Mooney v Vecchio, AD2d 415, 758 NYS2d 506 [2d Dept 2003]). AD2d NYS2d Dept 2003]). APR l _6_'-_U_' 6 iu,,,_ Dated:_A_P_R_1 Dated: --------- FINAL DISPOSITION DISPOSITION FINAL [* 5] SANTORELLI H A. SANTORELLI l.S.C. J.S.C. X 5 of 5 NON-FINAL DISPOSITION DISPOSITION NON-FINAL

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