Opinion
Index No. 2022-32569
07-08-2022
HECTOR VASQUEZ, Plaintiff, v. 1719 27 ST LLC, 27 ST CON LLC, 538 UNION CON LLC, J. PETROCELLI & SONS CONSTRUCTION, INC. and J. PETROCELLI CONSTRUCTION, INC., Defendants. 1719 27 ST LLC and 27 ST CON LLC, Third-Party Plaintiffs, v. TWINS ELECTRIC CORP. and TWINS SECURITY SYSTEMS CORP. Third-Party Defendants. J. PETROCELLI CONTRACTING, INC. s/h/a J. PETROCELLI & SONS CONSTRUCTION, INC., and J. PETROCELLI CONSTRUCTION, INC., Fourth-Party Plaintiffs, v. TWINS ELECTRIC CORP. and TWINS SECURITY SYSTEMS CORP. Fourth-Party Defendants. 1719 27 ST LLC and 27 ST CON LLC, Fifth-Party Plaintiffs, v. CONSTRUCTION REALTY SAFETY GROUP, INC., d/b/a CONSTRUCTION & REALTY SAFETY GROUP, INC. and CONSTRUCTION & REALTY SAFETY GROUP, INC. Fifth-Party Defendants.
Unpublished Opinion
PRESENT: HON. MARK PARTNOW, Justice.
MARK I. PARTNOW, JUDGE
The following e-filed papers read herein:
NYSCEF Nos.
Notice of Motion/Order to Show Cause/ Petition/Cross Motion and Affidavits (Affirmations) Annexed
376-403
Opposing Affidavits (Affirmations)
405,407,408-409,410
Affidavits/Affirmations in Reply
___
Other Papers:
__
Upon the foregoing papers, plaintiff Hector Vasquez (plaintiff) moves, in motion sequence number 12, for an order (1) pursuant to CPLR 2221(d), granting him leave to reargue this court's order, dated October 26, 2021, which granted the summary judgment motion of defendants 1719 27 ST LLC and 27 ST CON LLC ("1719 Owner") and the summary judgment cross motion of defendants J Petrocelli & Sons Construction Inc., and J Petrocelli Construction Inc., (collectively Petrocelli) and denied plaintiff's own cross motion for summary judgment, and (2) upon reargument, vacating the prior order and substituting a new decision denying the summary judgment motions and cross motions of defendants and granting plaintiff s cross motion seeking partial summary judgment on the issue of liability concerning plaintiffs claims as against defendants 1719 Owner and Petrocelli.
For the sake of brevity, the parties are referred to the court's Oct ober 26,2021 order for a full recitation of the facts and procedural history.
Plaintiffs Motion
Plaintiff argues that leave to reargue should be granted because the Court misapplied the law to the facts when it determined that his cross motion was untimely and that his opposition raised a new legal theory. Specifically, plaintiff asserts that his untimely cross motion was procedurally proper and should have been considered because it sought partial summary judgment on liability as to his negligence claim, while 1719 Owner's timely and pending summary judgment motion was based on the identical issue of negligence. Thus, he contends that as the issues raised were identical and already before the court, the requisite good cause for the belated cross motion was established and should have been considered on the merits. Additionally, plaintiff argues that this Court misapprehended the facts, claims made, and procedural history when it held that his cross motion and opposition raised a new theory of liability that could not be considered, as he served a supplemental, not an amended bill of particulars, claiming a violation of New York City Administrative Code §7-210.
Discussion
"Motions for reargument are addressed to the sound discretion of the court which decided the original motion and may be granted upon a showing that the court overlooked or misapprehended the facts or law or for some reason mistakenly arrived at its earlier decision [quotation marks omitted]" (Fuessel v Chin, 179 A.D.3d 899, 900-901 [2d Dept 2020], quoting Bueno v Allam, 170 A.D.3d 939, 940 [2d Dept 2019]; see Rodriguez v Gutierrez, 138A.D.3d 964,966 [2dDept 2016]; Ahmed v Pannone, 116 A.D.3d 802,805 [2d Dept 2014] ["a motion for leave to reargue is not designed to provide an unsuccessful party with successive opportunities to reargue issues previously decided, or to present arguments different from those originally presented"];.see also CPLR § 2221[d][2]).
Here, plaintiff merely reiterates the same arguments that he previously made before this court and fails to identify any specific facts or law that the court overlooked or misapprehended when it determined that his cross motion was untimely and that his supplemental bill of particulars was a nullity. In fact, it appears that plaintiff has misapprehended this court's determination with regard to both of these issues, namely, that the court found that plaintiff failed to obtain leave of this court to serve an amended or supplemental bill of particulars, 10 months after filing of his note of issue (see Salgado v Town Sports Intl., 73 A.D.3d 898 [2d Dept 2010]; Romanello v Jason, 303 A.D.2d 670, [2d Dept 2003]), and that such new theory of liability formed the basis of his summary judgment cross motion, again made more than 10 months after filing his note of issue (see Valiotis v Bekas, 191 A.D.3d 1037, 1038 [2d Dept 2021]). As this new theory of liability was unknown to defendants at the time that they made their summary judgment motions, the new issue raised in plaintiffs untimely cross motion was not nearly identical to those raised in defendants' timely applications for summary judgment.
Accordingly, the court finds that plaintiff has failed to sustain the requisite burden of demonstrating that the court overlooked or misapprehended the relevant facts or misapplied any controlling principle of law and his motion is denied in its entirety (see CPLR 2212[d]; Vaughn v Veolia Transp., Inc., 117 A.D.3d 939, 940 [2d Dept 2014]; Mazinov v Rella, 79 A.D.3d 979,980 [2dDept 2010]; Everhartv County of Nassau,65 A.D.3d 1277,1278 [2d Dept 2009]; Saccomagno v City of New York, 29 A.D.3d 979, 980 [2d Dept 2006]).
Based upon the foregoing, it is hereby
ORDERED that that plaintiffs motion (motion seq.no. 12) is denied.
The foregoing constitutes the decision and order of the Court.