| Elbaz v New York City Hous. Auth. |
| 2011 NY Slip Op 09589 [90 AD3d 986] |
| December 27, 2011 |
| Appellate Division, Second Department |
| Maria Elbaz, Respondent, v New York City HousingAuthority, Appellant. |
—[*1] Berkman Law Office, LLC, Brooklyn, N.Y. (Robert J. Tolchin and Aaron N. Solomon ofcounsel), for respondent.
In an action to recover damages for personal injuries, the defendant appeals from an order ofthe Supreme Court, Kings County (Bunyan, J.), dated May 26, 2010, which granted the plaintiff'smotion for leave to renew and reargue her opposition to its motion for summary judgmentdismissing the complaint, which had been granted in an order of the same court dated June 10,2009, and, upon renewal and reargument, vacated the order dated June 10, 2009, and thereupondenied its motion as premature, with leave to renew upon the completion of discovery.
Ordered that the order dated May 26, 2010, is modified, on the law, by deleting the provisionthereof granting that branch of the plaintiff's motion which was for leave to renew her oppositionto the defendant's motion for summary judgment dismissing the complaint, and substitutingtherefor a provision denying that branch of the plaintiff's motion; as so modified, the order datedMay 26, 2010, is affirmed, with costs payable to the plaintiff.
The plaintiff allegedly fell outside of the defendant's premises after tripping on debris thathad washed off a canopy overhang and was allowed to remain on the ground. After the plaintiffcommenced this action to recover damages for personal injuries, the defendant moved forsummary judgment dismissing the complaint, arguing that it neither created the alleged conditionnor had actual or constructive notice of it. The Supreme Court granted the motion, concludingthat the plaintiff failed to establish that the defendant had sufficient notice of the allegedcondition.
The plaintiff moved for leave to renew and reargue her opposition to the defendant's motion,contending, inter alia, that the defendant's motion was premature because discovery wasincomplete. In the order appealed from, the Supreme Court granted the plaintiff's motion, vacatedits prior order, and denied the defendant's motion for summary judgment as premature, findingthat "a great amount of discovery remain[ed] to be done."
The Supreme Court should have denied that branch of the plaintiff's motion which was forleave to renew, as the motion was not based upon new facts or a change in the law (see[*2]CPLR 2221 [e] [2]). However, the court providentlyexercised its discretion in granting that branch of the motion which was for leave to reargue(see CPLR 2221 [d]; Weiss vFire Extinguisher Servs. Co., Inc., 83 AD3d 822, 823 [2011]; Smith v City of New York, 38 AD3d641, 643 [2007]). Upon granting reargument, under the circumstances presented here, thecourt properly denied, as premature, with leave to renew upon the completion of discovery, thedefendant's motion for summary judgment dismissing the complaint (see CPLR 3212 [f];Lettieri v Cushing, 80 AD3d574, 576 [2011]; Botros vFlamm, 77 AD3d 602, 603 [2010]; Smith v City of New York, 38 AD3d at644). Skelos, J.P., Belen, Lott and Cohen, JJ., concur.