| Eddine v Federated Dept. Stores, Inc. |
| 2010 NY Slip Op 02868 [72 AD3d 487] |
| April 8, 2010 |
| Appellate Division, First Department |
| Nadia Jamal Eddine, Plaintiff, v Federated DepartmentStores, Inc., et al., Respondents, et al., Defendant. Federated Department Stores, Inc., et al.,Third-Party Plaintiffs-Respondents, et al., Third-Party Plaintiff, v Richemont North America,Inc., Third-Party Defendant-Appellant. |
—[*1] Lester Schwab Katz & Dwyer, LLP, New York (Steven B. Prystowsky of counsel), forFederated Department Stores, Inc. and Bloomingdale's, Inc., respondents. Smith Mazure Director Wilkins Young & Yagerman, P.C., New York (Louise M. Cherkis ofcounsel), for Seaboard Construction Group, respondent.
Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered June 17,2008, which, to the extent appealed from, denied that portion of then-defendant Richemont'smotion for summary judgment dismissing all cross claims against it and granted the crossmotions of the remaining defendants to convert those cross claims into third-party claims againstRichemont, and order, same court and Justice, entered January 16, 2009, which deniedRichemont's motion to renew that portion of its prior motion, unanimously affirmed, withoutcosts.
Plaintiff was injured when struck by a sign that fell while she was working behind theCartier counter at Bloomingdale's in Manhattan. Richemont is the owner of Cartier. With thedismissal of the complaint as against Richemont, the court properly converted the otherdefendants' cross claims for indemnification into a third-party action against Richemont (seee.g. [*2]Jones v New York City Hous. Auth., 293 AD2d 371[2002]). Richemont offered no evidence, either on its motion to dismiss or in opposition to thecross motions to file third-party actions, to contradict plaintiff's allegations of gravely disablinginjury under Workers' Compensation Law § 11 (see Rubeis v Aqua Club, Inc., 3 NY3d 408, 415 [2004]).
A motion to renew is intended to bring to the court's attention new or additional factsthat—although in existence at the time the original motion was made—wereunknown to the movant at that time. The rule is not inflexible, and renewal may be granted in thecourt's discretion, in the interest of justice, even on facts that were known to the movant at thetime of the original motion (see e.g.Rancho Santa Fe Assn. v Dolan-King, 36 AD3d 460, 461 [2007]). However, Richemontfailed to exercise due diligence in obtaining the expert reports, and also failed to provide areasonable explanation for not presenting such facts on its prior motion (CPLR 2221 [e] [3]).Under these circumstances, renewal was properly denied.
"Injuries qualifying as grave are narrowly defined" in Workers' Compensation Law §11, and the words in the statute should "be given their plain meaning without resort to forced orunnatural interpretations" (Castro v United Container Mach. Group, 96 NY2d 398, 401[2001]). Plaintiff's examining neuropsychologist concluded that the patient had suffered "a mildtraumatic brain injury," and exhibited no evidence of malingering. By contrast, defendant'sexaminer found no disability due to any neurological disorder, instead concluding that plaintiff'ssymptoms were "typical of a somatization[FN*]disorder related to her desperate quest for financial compensation." These starkly contradictoryconclusions presented an issue of fact for a jury. Concur—Andrias, J.P., Saxe, Catterson,Freedman and Abdus-Salaam, JJ. [Prior Case History: 2008 NY Slip Op 31652(U).]
Footnote *: Stedman's Medical Dictionary(at 1655 [27th ed 2000]) defines this word as the expression of psychological need or theconversion of anxiety into physical symptoms or "a wish for material gain associated with a legalaction following an injury."