Klein v. Fallsview Hotel

6 A.D.3d 663, 775 N.Y.S.2d 190, 2004 N.Y. App. Div. LEXIS 4928

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 26, 2004
• Status: Published

Opinion

In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Rings County (Schmidt, J.), dated March 17, 2003, which granted the plaintiffs’ motion for leave to reargue the defendant’s motion for summary judgment, which had been granted in a prior order of the same court dated September 20, 2002, and, upon reargument, denied its motion for summary judgment.

Ordered that the order is modified, on the law, by deleting the provision thereof which, upon reargument, denied the motion for summary judgment and substituting therefor a provision, upon reargument, adhering to the original determination in the order dated September 20, 2002; as so modified, the order dated March 17, 2003, is affirmed, with costs to the defendant.

The Supreme Court providently exercised its discretion in granting the plaintiffs’ motion for leave to reargue (see CPLR 2221; Foley v Roche, 68 AD2d 558 [1979]). However, upon reargument, the Supreme Court should have adhered to its original determination granting summary judgment to the defendant. The defendant established its entitlement to judgment as a matter of law by demonstrating that it neither created nor had notice of the alleged defective condition of the carpet where the injured plaintiff fell. In opposition, the plaintiffs failed to raise a triable issue of fact (see Piacquadio v Recine Realty Corp., 84 [1994]; Katsoris v Waldbaum, Inc., 241 AD2d 511 [1997]; Kraemer v K-Mart Corp., 226 AD2d 590 [1996]).

The plaintiffs’ remaining contention is without merit. Santucci, J.E, Altman, S. Miller and Goldstein, JJ., concur.