Saminion v. 581-583 Realty LLC

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Saminion v 581-583 Realty LLC 2024 NY Slip Op 30922(U) March 19, 2024 Supreme Court, Kings County Docket Number: Index No. 9802/2014 Judge: Leon Ruchelsman Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.

FILED: KINGS COUNTY CLERK 03/19/2024 04:24 PM INDEX NO. 9802/2014 NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 03/19/2024

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS : CIVIL TEP.M: COMMERCIAL 8 - . ------·--- ---------- ----· ·--- ·-.-.- .. ----·--·-x JUAN LUIS SANCHEZ SAMINION, Plaintiff, Decision and order

- against - Index No·. 9802/2014

581-583 REALTY LLC, 2412 CHURCH LLC, AQUA PHYSICAL THERAPY P. C. and SAIF U. [JIN, Defendant s, March 19, 2024 ------- ·--- ..--.- ·-- :-----·-·- .. -- .·-·--·-.----- -.-x AQUA PHYSICAL THERAPY P.C. and SAIF u. DIN, Third-Par ty Plaintiff ,

-against-

THE CITY OF NEW YORK, Third-Par ty Defendant , --------- ---- ·-------- ··--------- - ··-·-------.x PRESENT: HON. LEON RUCHELSMAN Motion Seq. #19

The plaintiff has ~bV~d pursuant tb CPLR §2221 .seeking to

renew a decision and order dated January 16, 2019 d,enying

plaintiff 's cross-mot ion seeking summary judgement ; The motion

is opposed. Papers were submitted by the parties and arguments

held. After reviewing all the arguments this court now :makes the

following determina tion.

As r~corded in the prior order the plaintiff alleges he

sustained injuries when on Marc-h 11, 2014, he tripped and fell ori

a sidewalk in front of premises located at 581-583 Fifth Avenue

in Kings County. 581-583 RealtyLLC , 2412 Church LLC moved

seeking surrtrrtary judgement on the grounds that as the owner and

manager of the_prope rty they were not responsib le for any

defects. That motion was denied. Of relevance , the plaintiff

FILED: KINGS COUNTY CLERK 03/19/2024 04:24 PM INDEX NO. 9802/2014 NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 03/19/2024

(Deutsche Bank National Trust Co., v. Russo, 170 AD3d 952, 96

NYS3d 617 [2d Dept., 20191) . The plaintiff has faileci to present

any evidence warranting a reconsideration o.f the earlier

determination that there are questions of fact whether the ciuty

to maintain the sidewalk was "completely transferred to the

tenant'' and whether the owner had such constructive notice of arry

work performed by the tenant, Therefore, the motion seeking, essentially, to reargue that

determination and any other issue of liability is denied.

So ordered. ENTER:

DATED: March 19, 2024 Brooklyn NY Hon. Leon Ruchelsrnari .JSC

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Footnotes

[1] of 5 [* 1] filed a cross-mot ion seeking summary judgement that the defendant s had prior notice of the alleged defect as a matter of law. That cross-mot ion w:as denied on the grounds the cross- motion was filed late and could not be considere d. Furthermo re, the decision noted that \'the question of prior notice in a negligence action is almost always a question of fact which should be determine d by a jµry'' (see, Decision, January 16, 2019 [N'YSCEF Doc. No. 48 J) . Following this· determina tion the note of issue was vacated. On February 18, 2020 the City of New York responded to discovery requests and those responses form the basis of the motion to renew. Those responses contain previously unknown informatio n which the plaintiff now argues conclusiv ely establish the ownEff had prior notice of the defect. This notice is in the form of a . 311 telephone call, an inspection of the location by the City and a violation to the owner of the defect and an acknowledg ment of the defect by the owner. The owner opposes the motion arguing the informatio rt is not new at all. conclusion s of La~ It is true that generally , a motion to renew must contain evidence that existed at the time the original motion was filed but was unknown to the moving party (Brooklyn Welding Corp .• v. Chin, 236 AD2d 392, 653 NYS2d 6:31 [2d Dept., 1997]) , However, that rule has been defined as \flexible' and a party may fil,e a 2

[2] of 5 [* 2] motion to ren.ew even if the .e,vidence was- known, at the tirrtl;:!: of the original motion provided the patty offers. a re.asona:ble exp1ari.atiort. ·why the additional facts were not incl1,1d_ed within the 9-rigin.a_l mo"t,i.on (.P·roqre·ssive Northe·a:ste·rn Insurance. Company v. Frenkel; 8AD3d 390,777 NYS2d 652 [2d Dept., 2004]). I-n the prior motion seeking_ summary judgement tp.e plaintiff po.sse.ss·ed the violation issu_ed by the City copq_iarning· the sidew_alk defect and such violation was referenced within the -report of pl.aintiff' s expert. .Harold Krongeib (s·ee, Af.i:i~m_ation iri Support of C:i:-o!3s-M.otion [NY$CEF Doc_;_ No. 63]) . The plaintiff argues that while tha:t document was its posses•sion m·o.re :i,nforniation about notice wps -only obtained after the: ·moti_on.- fo·r summary judgement was fi.led including records of a 311 call regarding the, condi tiort ·of the pro}Je;rty, records created .by the- .City f·ollowin_g the inspection. -antj pl;'oof the violation was ¢:ailed to the defendant. However-, nohe of that in:formation is non-·c-1,1mul-ati ve ..evidence tJ::).at :would, require the court_ t:o alter its previous de.terminatio n regarding notice. .The- violation issued by th~ City, which the·· plainti£f pos_sessedan d used in the mciti-on; is the culmination of all the ancillary irtformati-o.rt th·e plainti.ff now seeks in .support of tl:le mot.ion to rene-w. Th us, the 311 ca 11 prompted the investigation which then led to an in~pection an_d finally the violation. There Ci3-n be no basis to argue the 311 call and the 3

[3] of 5 [* 3] investiga tive reports created as a result of that call establish notice where the actual violation was held insufficie nt to establish such notice.. Indeed, the new evide:nce the plaintiff seeks to introdllce cannot be viewed in isolation . The new evidence only provides backgroun d informatio n and serve to endorse the subsequen t violation issued. Therefore , this · evidence does not tend to offer any informatio n not already previousl y offered. It is well settled that a motion to renew may riot be ba:sed on cumulativ e informatio n already submitted {Varela v. Clark, 134 AD3d 925, 21 NYS3d 331 [2d Dept., 2015]). Consequen tly, substanti ally the same evidence "with some elaboratio n and in slightly greater detail" is insufficie nt to successfu lly file a motion to renew (Construct amax, Inc. v. Dodge Chamberli n Luzine Weber, Associate s Architect s, LLP; 157 AD3d 852, 7 0 NYS3d 521 2d Dept. , 2018] ) ·• As noted, the informatio ri sought to be introduced does not help to establish conclusiv e proof of prior notice that iS different from evidence already submitted . Therefore , the motion seeking 1ic:ave to renew iB denied. Concerning any arguments the owner had construct ive notice of the defect, such argument is really a motion to reargue the prior determina tion. A motion to reargue must be based upon the fact the court overlooke d or misappreh ended fact or law or for some other reason mistakenl y arrived at in its earlier decision 4

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