Connolly v. Toys-R-Us

250 A.D.2d 721, 672 N.Y.S.2d 258, 1998 N.Y. App. Div. LEXIS 5826

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 18, 1998
• Status: Published

Opinion

—In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Nassau County (Roberto, J.), dated May 8, 1997, which, upon granting the plaintiffs’ motion for reargument, denied its motion for summary judgment.

Ordered that the order is affirmed, with costs.

Contrary to the defendant’s contention, the plaintiffs’ motion to reargue was not untimely. Since the plaintiffs filed a timely notice of appeal from the original order, “reargument did not serve as a substitute for failure to timely take an appeal” (Bermudez v New York City Hous. Auth., 199 AD2d 356, 357). In addition, the motion to reargue was made within a reasonable time after the original order and prior to the submission of the appeal from that order (see, Bray v Gluck, 235 AD2d 72; Bermudez v New York City Hous. Auth., supra).

Furthermore, summary judgment in favor of a defendant is generally precluded where, as here, the opinion of an expert establishes that a plaintiffs injuries were caused by a deviation from relevant industry standards (see, Murphy v City of Elmira, 84 NY2d 969, 971; see also, Quinn v K-Mart Corp., 224 AD2d 988). Thompson, J. P., Santucci, Friedmann and Florio, JJ., concur.