Opinion
2014-05-1
Bolivar AMILL, Plaintiff–Respondent, v. LAWRENCE RUBEN COMPANY, INC., et al., Defendants, Four Little Ones, LLC, Defendant–Appellant.
Flynn, Gibbons & Dowd, New York (Lawrence A. Doris of counsel), for appellant. Lisa M. Comeau, Garden City, for respondent.
Flynn, Gibbons & Dowd, New York (Lawrence A. Doris of counsel), for appellant. Lisa M. Comeau, Garden City, for respondent.
MAZZARELLI, J.P., RENWICK, FEINMAN, GISCHE, KAPNICK, JJ.
Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered May 2, 2013, which denied the motion of defendant Four Little Ones, LLC (Four Little) for leave to file an untimely summary judgment motion, and for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.
Four Little failed to establish good cause to make its second summary judgment motion more than 120 days after the note of issue was filed ( see Gonzalez v. 98 Mag Leasing Corp., 95 N.Y.2d 124, 128–129, 711 N.Y.S.2d 131, 733 N.E.2d 203 [2000];CPLR 3212[a] ). Successive summary judgment motions should only be entertained where there is a “showing of newly discovered evidence or other justification” ( Jones v. 636 Holding Corp., 73 A.D.3d 409, 899 N.Y.S.2d 605 [1st Dept.2010] ), such as an intervening appellate decision in the same case that clarifies or changes the controlling law ( see Pludeman v. Northern Leasing Sys., Inc., 106 A.D.3d 612, 616, 966 N.Y.S.2d 383 [1st Dept.2013];Trump Vil. Section 3 v. New York State Hous. Fin. Agency, 307 A.D.2d 891, 894, 764 N.Y.S.2d 17 [1st Dept. 2003],lv. denied1 N.Y.3d 504, 775 N.Y.S.2d 780, 807 N.E.2d 893 [2003] ).
Here, this Court's decision in the prior appeal (100 A.D.3d 458, 954 N.Y.S.2d 27 [1st Dept.2012] ) does not provide a justification for Four Little's second, untimely motion. On the prior motion, certain codefendants demonstrated they could not be held liable as out-of-possession landlords for a nonstructural defect that did not violate a specific statutory safety provision, and another codefendant showed that it was an employer entitled to rely on the exclusivity provision of the Workers Compensation Law ( id.). We further held that Four Little had not established entitlement to summary judgment on the sole issue it raised, namely, whether it had established its entitlement to rely on the Workers Compensation Law defense.
Four Little now argues that it is entitled to summary judgment because the accident arose out of the means and methods of plaintiff's work and not from a defective condition on the premises for which it could be held liable. Four Little's current arguments could have been raised on the prior motion, and it is well established that “[p]arties [are] not permitted to make successive fragmentary attacks upon a cause of action but must assert all available grounds when moving for summary judgment” ( Phoenix Four v. Albertini, 245 A.D.2d 166, 167, 665 N.Y.S.2d 893 [1st Dept.1997] [internal quotation marks omitted] ). In any event, the legal conclusions in our prior decision do not require judgment for Four Little, which, as the commercial tenant of the premises, had a common-law duty to maintain the premises in reasonably safe condition ( see e.g. DeMatteis v. Sears, Roebuck & Co., 11 A.D.3d 207, 208, 782 N.Y.S.2d 261 [1st Dept.2004] ).