Germano v. Germano

Appellate Division of the Supreme Court of New York

Germano v. Germano

247 A.D.2d 365, 667 N.Y.S.2d 942, 1998 N.Y. App. Div. LEXIS 863

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 2, 1998

StatusPublished

This text of 247 A.D.2d 365 (Germano v. Germano) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Germano v. Germano, 247 A.D.2d 365, 667 N.Y.S.2d 942, 1998 N.Y. App. Div. LEXIS 863 (N.Y. Ct. App. 1998).

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Opinion

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from (1) an order of the Supreme Court, Dutchess County (Hillery, J.), dated February 28, 1997, which granted the motion by the respondents Master-Built Homes, Inc. and Master-Built Construction Co. for summary judgment dismissing the complaint insofar as asserted against them, and (2) an order of the same court, dated July 7, 1997, which denied their motion which was, in effect, for reargument.

Ordered that the appeal from the order dated July 7, 1997, is dismissed; and it is further,

Ordered that the order dated February 28, 1997, is affirmed; and it is further,

Ordered that the respondents are awarded one bill of costs.

The plaintiffs’ motion, characterized as one for renewal and reargument of the respondents’ prior motion for summary judgment, was not based upon new facts which were unavailable at the time they submitted their opposition to the motion for summary judgment (see, Bossio v Fiorillo, 222 AD2d 476). Therefore, the plaintiffs’ motion was really a motion to reargue, and an order denying reargument is not appealable.

Contrary to the plaintiffs’ contention, the evidence adduced failed as a matter of law to establish that storage by the defendant Lawrence Stephen Germano of a certain “black powder rifle” at the offices of the respondents, and his intended loaning of the weapon to his cousin, the plaintiff Joel Germano, was within the scope of Lawrence’s employment or in furtherance of the respondents’ business interests (see, Riviello v Waldron, 47 NY2d 297; Gibilaro v Lomax Trading Corp., 22 AD2d 703, affd 16 NY2d 898).

The plaintiffs’ remaining contention is without merit.

Mangano, P. J., Copertino, Joy, Florio and Luciano, JJ., concur.

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In an action to recover damages for personal injuries, etc., the plaintiffs appeal from (1) an order of the Supreme Court, Dutchess County (Hillery, J.), dated February 28, 1997, which granted the motion by the respondents Master-Built Homes, Inc. and Master-Built Construction Co. for summary judgment dismissing the complaint insofar as asserted against them, and (2) an order of the same court, dated July 7, 1997, which denied their motion which was, in effect, for reargument.

Ordered that the appeal from the order dated July 7, 1997, is dismissed; and it is further,

Ordered that the order dated February 28, 1997, is affirmed; and it is further,

Ordered that the respondents are awarded one bill of costs.

The plaintiffs’ motion, characterized as one for renewal and reargument of the respondents’ prior motion for summary judgment, was not based upon new facts which were unavailable at the time they submitted their opposition to the motion for summary judgment (see, Bossio v Fiorillo, 222 AD2d 476). Therefore, the plaintiffs’ motion was really a motion to reargue, and an order denying reargument is not appealable.

Contrary to the plaintiffs’ contention, the evidence adduced failed as a matter of law to establish that storage by the defendant Lawrence Stephen Germano of a certain “black powder rifle” at the offices of the respondents, and his intended loaning of the weapon to his cousin, the plaintiff Joel Germano, was within the scope of Lawrence’s employment or in furtherance of the respondents’ business interests (see, Riviello v Waldron, 47 NY2d 297; Gibilaro v Lomax Trading Corp., 22 AD2d 703, affd 16 NY2d 898).

The plaintiffs’ remaining contention is without merit.

Mangano, P. J., Copertino, Joy, Florio and Luciano, JJ., concur.

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Bluebook (online)

247 A.D.2d 365, 667 N.Y.S.2d 942, 1998 N.Y. App. Div. LEXIS 863, Counsel Stack Legal Research, https://law.counselstack.com/opinion/germano-v-germano-nyappdiv-1998.

Opinion

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