| Petrosillo v Town of Huntington |
| 2010 NY Slip Op 04563 [73 AD3d 1146] |
| May 25, 2010 |
| Appellate Division, Second Department |
| Michael Petrosillo, Respondent, v Town of Huntington,Appellant. |
—[*1] Law Offices Of Joel Getreu, P.C., New York, N.Y., for respondent.
In an action to recover damages for personal injuries, the defendant appeals from (1) anorder of the Supreme Court, Suffolk County (Pines, J.), dated June 20, 2008, which denied itsmotion for summary judgment dismissing the complaint, and (2) an order of the same court datedMay 22, 2009, which denied its motion, which was denominated as one for leave to renew andreargue, but which was, in actuality, one for leave to reargue, its prior motion.
Ordered that the appeal from the order dated May 22, 2009, is dismissed, as no appeal liesfrom an order denying leave to reargue, and upon the further ground that the appeal from thatorder is academic in light of our determination on the appeal from the order dated June 20, 2008;and it is further,
Ordered that the order dated June 20, 2008, is reversed, on the law, and the defendant'smotion for summary judgment dismissing the complaint is granted; and it is further,
Ordered that one bill of costs is awarded to the defendant.
On August 7, 2005, the plaintiff attended a picnic at Crab Meadow Beach in Huntington.Late in the afternoon, he was approached by a young woman, Jennifer Kelly, who was employedby the defendant as a lifeguard, but whose duties also included removing plastic garbage bagsfrom metal garbage containers. According to the plaintiff, Kelly was struggling with one of thebags and asked the plaintiff if he could give her a hand. He complied with the request, andtogether they removed the bag from the container and placed it on a nearby cart. Further,according to the plaintiff, Kelly then asked him, "Can you help me with the rest?" The plaintiffagreed to do so and lifted up a garbage bag in a second container. However, because it was "veryheavy," he began to lower the bag to the ground, in order to get a better grip. In the process ofdoing so, a sharp object inside the bag lacerated both his legs.
The plaintiff subsequently commenced the present action, suing only the Town ofHuntington. The defendant moved for summary judgment dismissing the complaint on variousgrounds, [*2]including, inter alia, that it owed no duty to theplaintiff. The Supreme Court denied the motion. Thereafter, the defendant made a secondmotion, denominated as one for leave to renew and reargue. The Supreme Court denied thatmotion as well, and the defendant appeals from both orders.
The defendant's second motion, denominated as one for leave to renew and reargue, did notoffer any new facts not offered on its prior motion for summary judgment. The defendant soughtthe same relief without proffering any new facts, arguing that the court "erred" in its originaldetermination. Accordingly, this motion was, in actuality, one for leave to reargue, the denial ofwhich is not appealable (see CPLR 2221 [d] [2]; [e] [2]; U.S. Bank, N.A. vRussell-Esposito, 71 AD3d 1127 [2010]). Accordingly, we dismiss the defendant's appealfrom the order dated May 22, 2009, for this reason, and on the further ground that it is academicin light of our determination of the appeal from the order dated June 20, 2008, discussed below.
The defendant demonstrated, prima facie, that the plaintiff's allegations concerning thealleged conduct of its employee in seeking his assistance in removing the garbage bags from themetal containers involved discretionary acts for which the defendant could not be held liable(see McLean v City of New York, 12 NY3d 194, 202-203 [2009]; Lauer v City ofNew York, 95 NY2d 95, 99-100 [2000]). In opposition, the plaintiff failed to raise a triableissue of fact (see CPLR 3212 [b]; see generally Alvarez v Prospect Hosp., 68NY2d 320, 324 [1986]). Accordingly, the Supreme Court should have granted the defendant'smotion for summary judgment dismissing the complaint. Rivera, J.P., Florio, Miller and Austin,JJ., concur.