Pollock v. Wilson

Appeal from an order of the Supreme Court, Ontario County (Frederick G. Reed, A.J.), entered October 21, 2004 in a personal injury action. The order, inter alia, denied the motion of defendant David C. Wilson seeking leave to renew with respect to plaintiffs’ motion for partial summary judgment or, alternatively, vacatur of the order granting plaintiffs’ motion. It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs. Memorandum: Supreme Court properly denied the motion of David C. Wilson (defendant) seeking leave to renew with respect to plaintiffs’ motion for partial summary judgment or, alternatively, seeking vacatur of the order granting plaintiffs’ motion based on an alleged misrepresentation made in support of plaintiffs’ motion. With respect to renewal, we conclude that defendant failed to present the requisite “reasonable justification for the failure to present [the new] facts on the prior motion” (CPLR 2221 [e] [3]; see Paduano v Boland, 277 AD2d 979, 980 [2000]; Seymour v New York State Elec. & Gas Corp., 215 AD2d 971 [1995]). With respect to vacatur, defendant failed to establish that there was a misrepresentation in the affidavit submitted by Paul A. Pollock (plaintiff) in support of plaintiffs’ motion for partial summary judgment (see CPLR 5015 [a] [3]). In any event, we conclude on the merits that the court properly struck defendant’s affirmative defense asserting that the action is barred by the exclusive remedy provisions of the Workers’ Compensation Law. Plaintiffs established as a matter of law that plaintiff was not an employee of defendant at the time of the accident, and defendant failed to raise a triable issue of fact (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). We have considered defendant’s remaining contentions and conclude that they are without merit. Present—Pigott, Jr., P.J., Hurlbutt, Scudder, Gorski and Green, JJ.