Opinion
02-23-2017
Karlo MORATO–RODRIGUEZ, Plaintiff–Appellant, v. RIVA CONSTRUCTION GROUP, INC., Defendant, 1412 Broadway, LLC, et al., Defendants–Respondents.
Kagan & Gertel, Brooklyn (Irving Gertel of counsel), for appellant. Law Office of James J. Toomey, New York (Michael J. Kozoriz of counsel), for Admit One, LLC, respondent. McGaw, Alventosa & Zajac, Jericho (Ross P. Masler of counsel), for 1412 Broadway, LLC, respondent.
Kagan & Gertel, Brooklyn (Irving Gertel of counsel), for appellant.
Law Office of James J. Toomey, New York (Michael J. Kozoriz of counsel), for Admit One, LLC, respondent.
McGaw, Alventosa & Zajac, Jericho (Ross P. Masler of counsel), for 1412 Broadway, LLC, respondent.
Order, Supreme Court, Bronx County (Mary Ann Brigantti, J.), entered July 21, 2016, which, to the extent appealed from as limited by the briefs, granted defendant 1412 Broadway, LLC's (Broadway) motion to renew plaintiff's motion for partial summary judgment on the issue of Broadway's liability, and, upon renewal, denied plaintiff's motion, unanimously affirmed, without costs.
In a prior appeal brought by defendant Admit One, LLC from an order that, among other things, granted plaintiff's motion for partial summary judgment on his Labor Law § 240(1) claim as against Broadway and Admit One, this Court, among other things, modified the order to deny plaintiff's motion (115 A.D.3d 401, 981 N.Y.S.2d 403 [1st Dept.2014] ). Broadway, which did not appeal from the motion court's original order, moved to renew plaintiff's motion as against it, arguing that plaintiff's motion should be denied as against it, based on this Court's prior order.
The motion court properly granted Broadway's motion to renew, since this Court's prior order "constituted a change in the law" (David v. Persaud, 135 A.D.3d 530, 530, 23 N.Y.S.3d 213 [1st Dept.2016] ; Spierer v. Bloomingdale's, 59 A.D.3d 267, 267, 873 N.Y.S.2d 66 [1st Dept.2009], lv. denied 13 N.Y.3d 713, 2009 WL 4251021 [2009] ; see also CPLR 2221[e] [2] ). Upon renewal, the motion court properly denied plaintiff's motion as to Broadway, based on the "law of the case" doctrine (Persaud, 135 A.D.3d at 530, 23 N.Y.S.3d 213; Spierer, 59 A.D.3d at 267, 873 N.Y.S.2d 66 ).
The rule of Hecht v. City of New York, 60 N.Y.2d 57, 467 N.Y.S.2d 187, 454 N.E.2d 527 (1983) does not bar Broadway from seeking renewal (see Koscinski v. St. Joseph's Med. Ctr., 47 A.D.3d 685, 685–686, 850 N.Y.S.2d 162 [2d Dept.2008] ). Nor is the doctrine of res judicata applicable (see generally Collins v. Bertram Yacht Corp., 42 N.Y.2d 1033, 1034, 399 N.Y.S.2d 202, 369 N.E.2d 758 [1977] ). "[A] motion for leave to renew is not subject to any particular time constraints" (Ramos v. City of New York, 61 A.D.3d 51, 54, 872 N.Y.S.2d 128 [1st Dept.2009] ), and plaintiff fails to show any prejudice resulting from Broadway's delay in making the motion.
SWEENY, J.P., ANDRIAS, MANZANET–DANIELS, GISCHE, WEBBER, JJ., concur.