Morato-Rodriguez v. Riva Construction Group, Inc.

Appellate Division of the Supreme Court of New York

Morato-Rodriguez v. Riva Construction Group, Inc.

2017 NY Slip Op 1465, 147 A.D.3d 656, 46 N.Y.S.3d 882

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

DecidedFebruary 23, 2017

Docket3200 303634/09

StatusPublished

Cited by1 cases

This text of 2017 NY Slip Op 1465 (Morato-Rodriguez v. Riva Construction Group, Inc.) 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.

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Morato-Rodriguez v. Riva Construction Group, Inc., 2017 NY Slip Op 1465, 147 A.D.3d 656, 46 N.Y.S.3d 882 (N.Y. Ct. App. 2017).

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Opinion

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 AD3d 401 [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 AD3d 530, 530 [1st Dept 2016]; Spierer v Bloomingdale’s, 59 AD3d 267, 267 [1st Dept 2009], lv denied 13 NY3d 713 [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 AD3d at 530; Spierer, 59 AD3d at 267).

*657 The rule of Hecht v City of New York (60 NY2d 57 [1983]) does not bar Broadway from seeking renewal (see Koscinski v St. Joseph’s Med. Ctr., 47 AD3d 685, 685-686 [2d Dept 2008]). Nor is the doctrine of res judicata applicable (see generally Collins v Bertram Yacht Corp., 42 NY2d 1033, 1034 [1977]). “[A] motion for leave to renew is not subject to any particular time constraints” (Ramos v City of New York, 61 AD3d 51, 54 [1st Dept 2009]), and plaintiff fails to show any prejudice resulting from Broadway’s delay in making the motion.

Concur — Sweeny, J.P., Andrias, Manzanet-Daniels, Gische and Webber, JJ.

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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 AD3d 401 [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 AD3d 530, 530 [1st Dept 2016]; Spierer v Bloomingdale’s, 59 AD3d 267, 267 [1st Dept 2009], lv denied 13 NY3d 713 [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 AD3d at 530; Spierer, 59 AD3d at 267).

*657 The rule of Hecht v City of New York (60 NY2d 57 [1983]) does not bar Broadway from seeking renewal (see Koscinski v St. Joseph’s Med. Ctr., 47 AD3d 685, 685-686 [2d Dept 2008]). Nor is the doctrine of res judicata applicable (see generally Collins v Bertram Yacht Corp., 42 NY2d 1033, 1034 [1977]). “[A] motion for leave to renew is not subject to any particular time constraints” (Ramos v City of New York, 61 AD3d 51, 54 [1st Dept 2009]), and plaintiff fails to show any prejudice resulting from Broadway’s delay in making the motion.

Concur — Sweeny, J.P., Andrias, Manzanet-Daniels, Gische and Webber, JJ.

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2017 NY Slip Op 1465, 147 A.D.3d 656, 46 N.Y.S.3d 882, Counsel Stack Legal Research, https://law.counselstack.com/opinion/morato-rodriguez-v-riva-construction-group-inc-nyappdiv-2017.

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