| Frenchman v Lynch |
| 2012 NY Slip Op 05496 [97 AD3d 632] |
| July 11, 2012 |
| Appellate Division, Second Department |
| Dina Frenchman et al., Respondents, v Matthew J. Lynchet al., Defendants, and County of Nassau et al., Appellants. |
—[*1] London Fischer LLP, New York, N.Y. (Jeffrey D. Miragliotta and James Walsh of counsel),for appellant Welsbach Electric Corporation of Long Island. Meyer, Suozzi, English & Klein, P.C., Garden City, N.Y. (Robert N. Zausmer and MadelineKlotz of counsel), for respondents. Rivkin Radler LLP, Uniondale, N.Y. (Evan H. Krinick, Cheryl F. Korman, and MelissaM. Murphy of counsel), for defendants.
In an action to recover damages for personal injuries, etc., the defendant County of Nassauappeals, and the defendant Welsbach Electric Corporation of Long Island separately appeals, aslimited by their respective briefs, from so much of an order of the Supreme Court, NassauCounty (Jaeger, J.), entered March 25, 2011, as granted those branches of the plaintiffs' motionwhich were for leave to renew and reargue the plaintiffs' opposition to those branches of theirrespective motions which were for summary judgment dismissing the complaint insofar asasserted against each of them, which had been granted in an order of the same court (McCarty III,J.), entered November 18, 2010, and, upon renewal and reargument, in effect, vacated thedetermination in the order entered November 18, 2010, granting those branches of their priormotions which were for summary judgment dismissing the complaint insofar as asserted againsteach of them and thereupon denied those branches of the motions.
Ordered that the order entered March 25, 2011, is modified, on the law, (1) by deleting theprovision thereof granting that branch of the plaintiffs' motion which was for leave to renew, andsubstituting therefor a provision denying that branch of the motion, (2) by deleting the provisionsthereof granting that branch of the plaintiffs' motion which was for leave to reargue theiropposition to that branch of the motion of the defendant Welsbach Electric Corporation of LongIsland which was for summary judgment dismissing the complaint insofar as asserted against itand, upon reargument, in effect, vacating the determination in the order entered November 18,2010, granting that branch of that defendant's motion and thereupon denying that branch of thatdefendant's motion, and substituting therefor a provision denying that branch of the plaintiffs'motion which was for leave to reargue their opposition to that branch of that defendant's motion;as [*2]so modified, the order entered March 25, 2011, is affirmedinsofar as appealed from, with one bill of costs payable by the plaintiffs to the defendantWelsbach Electric Corporation of Long Island and one bill of costs payable by the defendantCounty of Nassau to the plaintiffs.
The injured plaintiff allegedly sustained personal injuries as a result of a motor vehicleaccident which allegedly was caused, in part, by a malfunctioning traffic light at the intersectionof Centre Avenue and Grand Avenue in Bellmore, New York. Thereafter, the injured plaintiff,and her husband suing derivatively, commenced this action against, among others, the defendantCounty of Nassau and the defendant Welsbach Electric Corporation of Long Island (hereinafterWelsbach), the company that maintained the subject traffic light pursuant to a contract with theCounty.
The Supreme Court should have denied that branch of the plaintiffs' motion which was forleave to renew their opposition to those branches of the respective motions of the County andWelsbach which were for summary judgment dismissing the complaint insofar as assertedagainst each of them, as that branch of the plaintiffs' motion was not based on new facts or achange in the law that would change the prior determination (see CPLR 2221 [e] [2]; Elbaz v New York City Hous. Auth.,90 AD3d 986, 987 [2011]; Parola,Gross & Marino, P.C. v Susskind, 43 AD3d 1020 [2007]). Moreover, the SupremeCourt should have denied that branch of the plaintiffs' motion which was for leave to rearguetheir opposition to that branch of Welsbach's motion which was for summary judgmentdismissing the complaint insofar as asserted against it. The plaintiffs failed to demonstrate thatthe Supreme Court overlooked or misapprehended the relevant facts or misapplied anycontrolling principle of law (see CPLR 2221 [d]; McGill v Goldman, 261 AD2d593, 594 [1999]). Welsbach, in support of that branch of its motion which was for summaryjudgment dismissing the complaint insofar as asserted against it, demonstrated its prima facieentitlement to judgment as a matter of law by submitting evidence establishing that it owed noduty of care to the plaintiffs (see Stiver vGood & Fair Carting & Moving, Inc., 9 NY3d 253, 256-257 [2007]; Church vCallanan Indus., 99 NY2d 104, 111-112 [2002]; Espinal v Melville Snow Contrs., 98NY2d 136, 138-140 [2002]; Torres v City of New York, 298 AD2d 318 [2002]). Inopposition, the plaintiffs failed to raise a triable issue of fact.
However, the Supreme Court providently exercised its discretion in granting that branch ofthe plaintiffs' motion which was for leave to reargue their opposition to that branch of theCounty's motion which was for summary judgment dismissing the complaint insofar as assertedagainst it (see CPLR 2221 [d]), since the Supreme Court misapprehended the legalsufficiency of the evidence submitted by the County in support of its initial motion. Moreover,upon reargument, the Supreme Court properly vacated its prior determination and denied thatbranch of the County's motion. In support of its initial motion, the County relied upon, inter alia,the affidavit of Sheila M. Dukacz, a Traffic Engineer II/Signal Management Section Head withthe Nassau County Department of Public Works, and her review of Welsbach's maintenancerecords. The plaintiffs opposed the motion on the ground, inter alia, that the County failed toestablish its prima facie entitlement to judgment as a matter of law. We agree with the plaintiffsthat the evidence submitted by the County was indeed insufficient to make a prima facie showingthat the County did not have notice of a defect in the traffic light (see Colon v Manhattan & Bronx SurfaceTr. Operating Auth., 35 AD3d 515, 517 [2006]). Since the County failed to meet itsprima facie burden on its initial motion, the Supreme Court, upon reargument, properlydetermined, in effect, that it need not have considered whether the plaintiffs' opposition papersraised a triable issue of fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851,853 [1985]). Skelos, J.P., Dickerson, Leventhal and Roman, JJ., concur.