Saminion v. 581-583 Realty LLC

2024 NY Slip Op 30922(U)

• Court: New York Supreme Court, Kings County
• Decided: March 19, 2024
• Status: Unpublished

Opinion

Saminion v 581-583 Realty LLC 2024 NY Slip Op 30922(U) March 19, 2024 Supreme Court, Kings County Docket Number: Index No. 9802/2014 Judge: Leon Ruchelsman Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: KINGS COUNTY CLERK 03/19/2024 04:24 PM INDEX NO. 9802/2014 NYSCEF DOC. NO. 78 RECEIVED NYSCEF: 03/19/2024

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS : CIVIL TEP.M: COMMERCIAL 8 - . ------·--- ---------- ----· ·--- ·-.-.- .. ----·--·-x JUAN LUIS SANCHEZ SAMINION, Plaintiff, Decision and order

- against - Index No·. 9802/2014

581-583 REALTY LLC, 2412 CHURCH LLC, AQUA PHYSICAL THERAPY P. C. and SAIF U. [JIN, Defendant s, March 19, 2024 ------- ·--- ..--.- ·-- :-----·-·- .. -- .·-·--·-.----- -.-x AQUA PHYSICAL THERAPY P.C. and SAIF u. DIN, Third-Par ty Plaintiff ,

-against-

THE CITY OF NEW YORK, Third-Par ty Defendant , --------- ---- ·-------- ··--------- - ··-·-------.x PRESENT: HON. LEON RUCHELSMAN Motion Seq. #19

The plaintiff has ~bV~d pursuant tb CPLR §2221 .seeking to

renew a decision and order dated January 16, 2019 d,enying

plaintiff 's cross-mot ion seeking summary judgement ; The motion

is opposed. Papers were submitted by the parties and arguments

held. After reviewing all the arguments this court now :makes the

following determina tion.

As r~corded in the prior order the plaintiff alleges he

sustained injuries when on Marc-h 11, 2014, he tripped and fell ori

a sidewalk in front of premises located at 581-583 Fifth Avenue

in Kings County. 581-583 RealtyLLC , 2412 Church LLC moved

seeking surrtrrtary judgement on the grounds that as the owner and

manager of the_prope rty they were not responsib le for any

defects. That motion was denied. Of relevance , the plaintiff

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filed a cross-mot ion seeking summary judgement that the

defendant s had prior notice of the alleged defect as a matter of

law. That cross-mot ion w:as denied on the grounds the cross-

motion was filed late and could not be considere d. Furthermo re,

the decision noted that \'the question of prior notice in a

negligence action is almost always a question of fact which

should be determine d by a jµry'' (see, Decision, January 16, 2019

[N'YSCEF Doc. No. 48 J) . Following this· determina tion the note of

issue was vacated. On February 18, 2020 the City of New York

responded to discovery requests and those responses form the

basis of the motion to renew. Those responses contain previously

unknown informatio n which the plaintiff now argues conclusiv ely

establish the ownEff had prior notice of the defect. This notice

is in the form of a . 311 telephone call, an inspection of the

location by the City and a violation to the owner of the defect

and an acknowledg ment of the defect by the owner. The owner

opposes the motion arguing the informatio rt is not new at all.

conclusion s of La~

It is true that generally , a motion to renew must contain

evidence that existed at the time the original motion was filed

but was unknown to the moving party (Brooklyn Welding Corp .• v.

Chin, 236 AD2d 392, 653 NYS2d 6:31 [2d Dept., 1997]) , However,

that rule has been defined as \flexible' and a party may fil,e a

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motion to ren.ew even if the .e,vidence was- known, at the tirrtl;:!: of the

original motion provided the patty offers. a re.asona:ble

exp1ari.atiort. ·why the additional facts were not incl1,1d_ed within the

9-rigin.a_l mo"t,i.on (.P·roqre·ssive Northe·a:ste·rn Insurance. Company v.

Frenkel; 8AD3d 390,777 NYS2d 652 [2d Dept., 2004]).

I-n the prior motion seeking_ summary judgement tp.e plaintiff

po.sse.ss·ed the violation issu_ed by the City copq_iarning· the

sidew_alk defect and such violation was referenced within the -report of pl.aintiff' s expert. .Harold Krongeib (s·ee, Af.i:i~m_ation iri

Support of C:i:-o!3s-M.otion [NY$CEF Doc_;_ No. 63]) . The plaintiff

argues that while tha:t document was its posses•sion m·o.re

:i,nforniation about notice wps -only obtained after the: ·moti_on.- fo·r

summary judgement was fi.led including records of a 311 call

regarding the, condi tiort ·of the pro}Je;rty, records created .by the-

.City f·ollowin_g the inspection. -antj pl;'oof the violation was ¢:ailed

to the defendant.

However-, nohe of that in:formation is non-·c-1,1mul-ati ve ..evidence

tJ::).at :would, require the court_ t:o alter its previous de.terminatio n

regarding notice. .The- violation issued by th~ City, which the··

plainti£f pos_sessedan d used in the mciti-on; is the culmination of

all the ancillary irtformati-o.rt th·e plainti.ff now seeks in .support

of tl:le mot.ion to rene-w. Th us, the 311 ca 11 prompted the

investigation which then led to an in~pection an_d finally the

violation. There Ci3-n be no basis to argue the 311 call and the

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investiga tive reports created as a result of that call establish

notice where the actual violation was held insufficie nt to

establish such notice.. Indeed, the new evide:nce the plaintiff

seeks to introdllce cannot be viewed in isolation . The new

evidence only provides backgroun d informatio n and serve to

endorse the subsequen t violation issued. Therefore , this

· evidence does not tend to offer any informatio n not already

previousl y offered. It is well settled that a motion to renew

may riot be ba:sed on cumulativ e informatio n already submitted

{Varela v. Clark, 134 AD3d 925, 21 NYS3d 331 [2d Dept., 2015]).

Consequen tly, substanti ally the same evidence "with some

elaboratio n and in slightly greater detail" is insufficie nt to

successfu lly file a motion to renew (Construct amax, Inc. v. Dodge

Chamberli n Luzine Weber, Associate s Architect s, LLP; 157 AD3d

852, 7 0 NYS3d 521 2d Dept. , 2018] ) ·•

As noted, the informatio ri sought to be introduced does not

help to establish conclusiv e proof of prior notice that iS

different from evidence already submitted . Therefore , the motion

seeking 1ic:ave to renew iB denied.

Concerning any arguments the owner had construct ive notice

of the defect, such argument is really a motion to reargue the

prior determina tion. A motion to reargue must be based upon the

fact the court overlooke d or misappreh ended fact or law or for

some other reason mistakenl y arrived at in its earlier decision

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(Deutsche Bank National Trust Co., v. Russo, 170 AD3d 952, 96

NYS3d 617 [2d Dept., 20191) . The plaintiff has faileci to present

any evidence warranting a reconsideration o.f the earlier

determination that there are questions of fact whether the ciuty

to maintain the sidewalk was "completely transferred to the

tenant'' and whether the owner had such constructive notice of arry

work performed by the tenant, Therefore, the motion seeking, essentially, to reargue that

determination and any other issue of liability is denied.

So ordered. ENTER:

DATED: March 19, 2024 Brooklyn NY Hon. Leon Ruchelsrnari .JSC

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