| Maragliano v Port Auth. of N.Y. & N.J. |
| 2014 NY Slip Op 04907 [119 AD3d 534] |
| July 2, 2014 |
| Appellate Division, Second Department |
[*1]
| 1 Eduardo Maragliano, Appellant, v PortAuthority of New York And New Jersey et al., Respondents. (And a Third-PartyAction.) |
The Orlow Firm, Flushing, N.Y. (Adam M. Orlow and Louis A. Badola of counsel),for appellant.
Segal McCambridge Singer & Mahoney, New York, N.Y. (Simon Lee andChristian H. Gannon of counsel), for respondent Port Authority of N.Y. & N.J.
Lipsitz Green Scime Cambria, LLP, Buffalo, N.Y. (John A. Collins of counsel), forrespondent Zano Industries, Inc.
In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals,as limited by his brief, from (1) so much of an order of the Supreme Court, QueensCounty (J. Golia, J.), entered March 6, 2012, as, upon renewal, in effect, vacated thedetermination in an order of the same court dated June 27, 2011, denying those branchesof the motion of the defendant Port Authority of New York and New Jersey which werefor summary judgment dismissing the causes of action alleging violations of Labor Law§§ 240 (1) and 241 (6) insofar as asserted against it, and thereupongranted those branches of the motion, and (2) so much of an order of the same courtentered October 3, 2012, as (a) denied the plaintiff's cross motion, denominated as onefor leave to renew, but which was, in actuality, one for leave to reargue his opposition tothe motion of the defendant Port Authority of New York and New Jersey which was forleave to renew its prior motion for summary judgment dismissing the complaint insofaras asserted against it, and (b) granted that branch of the motion of the defendant ZanoIndustries, Inc., which was for leave to renew its prior motion for summary judgmentdismissing the complaint insofar as asserted against it, which had been denied in theorder dated June 27, 2011, and, upon renewal, in effect, vacated the determination in theorder dated June 27, 2011, denying those branches of the motion of the defendant ZanoIndustries, Inc., which were for summary judgment dismissing the causes of actionalleging violations of Labor Law §§ 240 (1) and 241 (6) insofar asasserted against it, and thereupon granted those branches of the motion.
Ordered that the order entered March 6, 2012, is affirmed insofar as appealed from;and it is further,
Ordered that the appeal from so much of the order entered October 3, 2012, asdenied the plaintiff's cross motion, denominated as one for leave to renew, but whichwas, in actuality, one for leave to reargue his opposition to the motion of the defendantPort Authority of New York and New Jersey which was for leave to renew its priormotion for summary judgment dismissing the complaint [*2]insofar as asserted against it, is dismissed, as no appeal liesfrom an order denying reargument; and it is further,
Ordered that the order entered October 3, 2012, is affirmed insofar as reviewed; andit is further,
Ordered that one bill of costs is awarded to the defendants.
The defendant Port Authority of New York and New Jersey (hereinafter the PortAuthority) established, prima facie, that at the time of the subject accident, the plaintiffwas not engaged in construction work within the meaning of Labor Law§ 240 (1) and was not working in a construction area within the meaning ofLabor Law § 241 (6) (see Jock v Fien, 80 NY2d 965 [1992]; Flores v ERC Holding LLC, 87AD3d 419, 420 [2011]; Pirog v 5433 Preston Ct., LLC, 78 AD3d 676, 677 [2010]).In opposition, the plaintiff failed to raise a triable issue of fact. Accordingly, contrary tothe plaintiff's contention, upon renewal, the Supreme Court properly granted thosebranches of the Port Authority's motion which were for summary judgment dismissingthe causes of action alleging violations of Labor Law §§ 240 (1) and241 (6) insofar as asserted against it.
Furthermore, the Supreme Court properly determined that, pursuant to thelaw-of-the-case doctrine, it was appropriate, upon renewal, to grant those branches of themotion of the defendant Zano Industries, Inc., which were for summary judgmentdismissing the causes of action alleging violations of Labor Law§§ 240 (1) and 241 (6) insofar as asserted against it (see generally Pastrana v Cutler,115 AD3d 725 [2014]; Romagnolo v Pandolfini, 75 AD3d 632, 634 [2010]).Although, pursuant to the law-of-the-case doctrine, this Court is not bound by theSupreme Court's prior determination, under the circumstances presented here, we declineto disturb the Supreme Court's invocation of that doctrine (see Pastrana v Cutler, 115AD3d 725 [2014]; Romagnolo v Pandolfini, 75 AD3d at 634).
The plaintiff's cross motion, denominated as one for leave to renew, did not offer anynew facts not offered in support of the plaintiff's opposition to the Port Authority'smotion which was for leave to renew its prior motion for summary judgment dismissingthe complaint insofar as asserted against it. Therefore, his motion, although denominatedas one for leave to renew, was, in actuality, one for leave to reargue, the denial of whichis not appealable (see Poulard vJudkins, 102 AD3d 665, 665 [2013]; Strunk v Revenge Cab Corp., 98 AD3d 1030, 1031 [2012];Schoenfeld v Shonfeld, 266 AD2d 449 [1999]). Accordingly, the appeal from somuch of the order entered October 3, 2012, as denied the plaintiff's cross motion must bedismissed.
The plaintiff's remaining contentions are without merit. Dickerson, J.P., Leventhal,Hall and Miller, JJ., concur. [Prior Case History: 2012 NY Slip Op30374(U).]