| Weiss v Fire Extinguisher Servs. Co., Inc. |
| 2011 NY Slip Op 03052 [83 AD3d 822] |
| April 12, 2011 |
| Appellate Division, Second Department |
| Elizabeth Weiss, Respondent, v Fire Extinguisher ServicesCo., Inc., et al., Appellants. (And a Third-Party Action.) |
—[*1] Hoey, King, Toker & Epstein (Mischel & Horn, P.C., New York, N.Y. [Scott T. Horn andNaomi M. Taub], of counsel), for appellant Cushman & Wakefield. Edelman Krasin & Jaye, P.C. (Pollack, Pollack, Isaac & De Cicco, New York, N.Y. [Brian J.Isaac and Michael H. Zhu], of counsel), for respondent.
In an action to recover damages for personal injuries, the defendant Fire ExtinguisherServices Co., Inc. appeals, as limited by its brief, from so much of (1) an order of the SupremeCourt, Kings County (Schmidt, J.), dated October 29, 2008, as granted that branch of its motionwhich was for summary judgment dismissing the complaint insofar as asserted against it, and (2)an order of the same court dated November 18, 2009, as, upon reargument, vacated so much ofthe order dated October 29, 2008, as granted that branch of its motion which was for summaryjudgment dismissing the complaint insofar as asserted against it, and thereupon denied thatbranch of its motion, and the defendant Cushman & Wakefield separately appeals, as limited byits brief, from so much of (1) the order dated October 29, 2008, as granted that branch of its crossmotion which was for summary judgment dismissing the complaint insofar as asserted against it,and (2) the order dated November 18, 2009, as granted that branch of the plaintiff's motion whichwas for leave to reargue her opposition to that branch of its cross motion which was for summaryjudgment dismissing the complaint insofar as asserted against it and, upon reargument, vacatedso much of the order dated October 29, 2008, as granted that branch of its cross motion whichwas for summary judgment dismissing the complaint insofar as asserted against it and thereupondenied that branch of its cross motion.
Ordered that the appeals from the order dated October 29, 2008, are dismissed, as that orderwas vacated by the order dated November 18, 2009, and, in any event, the appellants are notaggrieved by the order dated October 29, 2008 (see CPLR 5511); and it is further,
Ordered that the order dated November 18, 2009, is affirmed insofar as appealed from; and itis further,[*2]
Ordered that one bill of costs is awarded to therespondent.
" 'Motions for reargument are addressed to the sound discretion of the court which decidedthe prior motion and may be granted upon a showing that the court overlooked ormisapprehended the facts or law or for some [other] reason mistakenly arrived at its earlierdecision' " (Barnett v Smith, 64AD3d 669, 670-671 [2009], quoting E.W. Howell Co., Inc. v S.A.F. La Sala Corp., 36 AD3d 653, 654[2007] [internal quotation marks omitted]; see CPLR 2221 [d]). Contrary to thecontention of the defendant Cushman & Wakefield (hereinafter C & W), the Supreme Courtprovidently exercised its discretion in granting that branch of the plaintiff's motion which was forleave to reargue.
Upon reargument, the Supreme Court properly denied that branch of C & W's motion whichwas for summary judgment dismissing the complaint insofar as asserted against it. In oppositionto C & W's prima facie showing of entitlement to judgment as a matter of law, the plaintiff raisedtriable issues of fact, inter alia, as to whether the subject fire extinguisher was in a dangerous ordefective condition, and, if so, whether C & W created or had actual or constructive notice of thedangerous or defective condition (see Piacquadio v Recine Realty Corp., 84 NY2d 967[1994]; Gordon v American Museum of Natural History, 67 NY2d 836, 838 [1986]; Zerilli v Western Beef Retail, Inc., 72AD3d 681 [2010]; Perlongo v ParkCity 3 & 4 Apts., Inc., 31 AD3d 409 [2006]; see also Badea v Seneca Ins. Co.,203 AD2d 98 [1994]).
Upon reargument, the Supreme Court also properly denied that branch of the cross motion ofthe defendant Fire Extinguisher Services Co., Inc. (hereinafter FES), which was for summaryjudgment dismissing the complaint insofar as asserted against it. Although FES demonstrated itsprima facie entitlement to judgment as a matter of law by establishing that the plaintiff was not aparty to its contract to install and maintain certain fire extinguishers on the premises and that ittherefore owed no duty of care to the plaintiff (see Foster v Herbert Slepoy Corp., 76 AD3d 210 [2010]; Wheaton v East End Commons Assoc.,LLC, 50 AD3d 675, 677 [2008]; Baratta v Home Depot USA, 303 AD2d 434,434-435 [2003]), in opposition, the plaintiff raised a triable issue of fact as to whether FESlaunched a force or instrument of harm by improperly installing or situating the subject fireextinguisher (see Espinal v Melville Snow Contrs., 98 NY2d 136, 140 [2002]). Mastro,J.P., Balkin, Leventhal and Miller, JJ., concur.