Opinion
26707-09.
Decided March 23, 2011.
Meyer Suozzi English Klein, Attorneys for Plaintiff.
Rivkin Radler LLP, Attorneys for Defendants Lynch and Bellmore Fire District.
John Ciampoli, County Attorney, Attorneys for Defendant County of Nassau.
London Fischer, Attorneys for Defendant Welsbach Electric Corp.
Plaintiffs, Dina and Todd Frenchman, move, for an Order of this Court, pursuant to CPLR 2221(d) and (e) for leave to reargue and renew the Decision and Order of this Court (McCarty, J.) dated November 15, 2010. The motion to renew and reargue was assigned to this Court pursuant to CPLR 2221(a) and is granted.
This personal injury action arises out of a motor vehicle accident that occurred at the intersection of Centre Avenue and Grand Avenue in Bellmore, New York (the "subject intersection") on May 25, 2009 at approximately 1:50 p.m. Plaintiff was traveling through the intersection when she was struck by a fire truck owned by the defendant Bellmore Fire District and operated by the defendant Matthew J. Lynch. It was alleged that the traffic signal light at the subject intersection was malfunctioning at the time of the accident. Defendant, Welsbach Electric Corporation of Long Island ("Welsbach") contracted with the County of Nassau ("County") to maintain and repair the traffic control devices within the County including at the subject intersection. Specifically, plaintiffs' verified complaint alleged that the defendant County of Nassau and defendant Welsbach, its contractor, were negligent in their maintenance, operation, inspection and control of the traffic signal at the subject intersection. The underlying records confirmed that at her municipal hearing, the plaintiff testified that she had a green light in her favor. The defendant Matthew Lynch submitted an affidavit stating that the traffic light was green in his favor when he entered the subject intersection.
On November 15, 2010, Justice McCarty granted defendant Welsbach's motion and defendant County's cross motion for summary judgment dismissal of the plaintiffs' complaint as asserted against them. The Court determined:
The affidavits and documentary evidence concerning repair and inspection of the subject traffic signal offered by defendant Welsbach and defendant County were sufficient to establish their prima facie entitlement to summary judgment as a matter of law.***In opposition thereto, plaintiffs and defendants [Matthew J. Lynch] and [Bellmore Fire] District failed to offer admissible evidence sufficient to raise a triable issue of fact.
The contention that these motions for summary judgment are premature because discovery is incomplete is without merit. In opposing the motions for summary judgment, plaintiffs and defendants Lynch and District have failed to offer an evidentiary basis to suggest that further discovery may lead to relevant evidence. Mere hope or speculation that such evidence may be discovered is an insufficient basis for denying a motion for summary judgment.***
In their application to essentially reverse this determination, plaintiffs Dina and Todd Frenchman timely move, pursuant to CPLR 2221(a) and (e) to renew their opposition to defendants' motion for summary judgment and an order pursuant to CPLR 2221(d) granting reargument of the Order dated November 15, 2010.
The underlying procedural facts herein are undisputed: plaintiffs commenced this action in December 2009. In a Response to Notice for Discovery and Inspection dated May 3, 2010, submitted by the plaintiff, the defendant County of Nassau refused to produce copies of repair orders, or reports of defects, faults, or problems concerning the traffic light at the subject intersection. Thus, plaintiffs had yet to obtain documents concerning, inter alia, internal and external communications regarding the subject traffic light and other accidents at the subject intersection where it is alleged the subject traffic light played a role. Further, it is undisputed that the depositions on behalf of the County and Welsbach concerning, inter alia, their knowledge of any and all malfunctions of the subject traffic light, were outstanding. The deposition of the defendant Lynch was also outstanding.
Reargument
A motion to reargue is addressed to the discretion of the court and is designed to afford a party an opportunity to establish that the court overlooked or misapprehended the relevant facts, or misapplied a controlling principle of law (CPLR 2221[d][2]). It is not designed as a vehicle to afford the unsuccessful party an opportunity to argue once again the very questions previously decided ( Gellert Rodner v. Gem Community Mgt., Inc. , 20 AD3d 388 [2nd Dept. 2005]). Nor is it designed to provide an opportunity for a party to advance arguments different from those originally tendered ( Amato v. Lord Taylor, Inc. , 10 AD3d 374 , 375 [2nd Dept. 2004]) or argue a new theory of law or raise new questions not previously advanced ( Levi v. Utica First Ins. Co. , 12 AD3d 256 , 258 [1st Dept. 2004]; Frisenda v. X Large Enterprises, Inc., 280 AD2d 514, 515 [2nd Dept. 2001]). Instead, the movants must demonstrate the matters of fact or law that they believe the court has misapprehended or overlooked ( Hoffmann v. Debello-Teheny , 27 AD3d 743 [2nd Dept. 2006]). Absent a showing of misapprehension or the overlooking of a fact, the court must deny the motion ( Barrett v. Jeannot , 18 AD3d 679 [2nd Dept. 2005]). Further, a motion to reargue is based solely upon the papers submitted in connection with the prior motion. New facts may not be submitted or considered by the court ( James v. Nestor, 120 AD2d 442 [1st Dept. 1986]; Philips v. Village of Oriskany, 57 AD2d 110 [4th Dept. 1997]).
In requesting reargument herein, plaintiffs submit that Justice McCarty mistakenly arrived at his earlier decision because the plaintiffs did not have an adequate opportunity to complete discovery and multiple issues of fact existed at the time summary judgment was granted. Essentially, the gist of plaintiffs' argument is that since there was substantial outstanding discovery that was relevant to numerous issues of fact, the defendants' underlying motions for summary judgment should have been denied as premature.
Inasmuch as a motion for reargument is addressed to the discretion of this Court, and is designed to afford a party the opportunity to establish that the court overlooked or misapprehended relevant facts ( Flynn v. Town of North Hempstead, 114 Misc 2d 125 [Sup. Ct. Nassau 1982] aff'd 97 AD2d 430 [2nd Dept. 1983]), this Court finds outstanding discovery to be a valid basis on which to grant reargument herein particularly because "[a] party should be afforded a reasonable opportunity to conduct discovery prior to the determination of a motion for summary judgment" ( Amico v. Melville Volunteer Fir Co., Inc. , 39 AD3d 784, 785 [2nd Dept. 2007]). Additionally, "[i]t is well settled that where facts essential to justify opposition to a motion for summary judgment are exclusively within the knowledge and control of the movant, summary judgment may be denied *** especially . . . where the opposing party has not had a reasonable opportunity for disclosure prior to the making of the motion" ( Baron v. Inc. Vill. of Freeport, 143 AD2d 792, 792-93 [2nd Dept. 1988]).
The underlying records herein confirm that while the County objected to the plaintiffs' document demands and refused to produce any responsive documents, it nonetheless relied on such documents to support its motion for summary judgment. Therefore, this Court is persuaded that those facts which were essential to plaintiffs' case and to oppose defendants' motion for summary judgment were exclusively within the knowledge and control of the defendant and thus summary judgment was not appropriate ( Campbell v. City of New York, 220 AD2d 476, 477 [2nd Dept. 1995]). Inasmuch as the law is well settled that summary judgment is a drastic remedy, it "should only be employed where there is no doubt as to the absence of triable issues" ( Andre v. Pomeroy, 35 NY2d 361). Based upon all the papers submitted for its consideration, it is now apparent that the Court misapprehended relevant facts in reaching its earlier determination.
Accordingly, based upon this misapprehension of relevant facts, including whether Nassau County and Welsbach had actual or constructive notice of the defect involving the subject traffic light, the Court grants plaintiffs' motion to reargue the prior Order dated November 15, 2010 ( Bouloukos v. Blank, 202 AD2d 539 [2nd Dept. 1994]; Barrett v. Jeannot , 18 AD3d 679 [2nd Dept. 2005]).
In opposing the plaintiffs' instant motion to reargue, Welsbach argues that because it had no notice of any problem with, nor made any repairs to the traffic light for more than 90 days before the accident, the reargument motion should be denied. This argument is unpersuasive particularly in light of the fact that Welsbach offers no legal support for its contention that 90 days notice was required or that it was required to receive a notice of the defect on the same day as plaintiff's accident ( Katz v. City of New York, 87 NY2d 241, 246). Further, at this juncture, this Court simply cannot overlook the fact that defendants' own records contained evidence of repeated malfunctions with the traffic signal at this subject intersection.
Similarly, Welsbach's argument that it is entitled to summary judgment because its contract with the County allegedly required it to "respond to traffic signal malfunctions only upon notification" is equally unpersuasive in light of the fact that it fails to cite to any wording in its contract which stated such a limited duty. The contract plainly states that Welsbach had a duty to respond when notified; it nowhere states however that its duty to repair the traffic signals was limited to only those occasions when it was notified. It had a contractual duty to maintain the traffic signals in good repair. Therefore its argument that it did not owe a duty to the plaintiffs or the public is meritless. Welsbach may be held liable to the injured plaintiffs if it is found that it was "negligent in the repair of the traffic signals controlling traffic at the subject intersection" ( Laap v. Francis , 54 AD3d 1006 , 1007 [2nd Dept. 2008]; Davilmar v. City of New York , 7 AD3d 559 , 560 [2nd Dept. 2004]).
Similarly, the County's argument that Welsbach's maintenance, repair and inspection records upon which it relied on its underlying motion for summary judgment, demonstrate that the inspections and repairs of the traffic signal "constitute[] reasonably safe maintenance" is also meritless. The fact that the traffic signal was periodically serviced is not evidence of the County's knowledge of prior malfunctions with the same traffic signal. Similarly, the County's argument that the notice it had been provided was inadequate because it was not in "written" form is also completely unavailing since not only is there no rule or regulation requiring prior written notice of a defective traffic signal, but Welsbach's records (upon which it relied) clearly confirm that it did have written notice of past problems with the subject traffic signal.
Renewal
Pursuant to CPLR 2221(e):
A motion for leave to renew: (1) shall be identified specifically as such; (2) shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination; and (3) shall contain reasonable justification for the failure to present such facts on the prior motion.
( See, 515 Ave. I Corp. v. 515 Ave. I Tenants Corp. , 44 AD3d 707 [2nd Dept. 2007]; Veitsman v. G M Ambulette Serv., Inc. , 35 AD3d 848 [2nd Dept. 2006]).
It is not sufficient that new facts merely be presented to the Court. Specifically, the movant must demonstrate why facts known at the time of the original motion were not then presented to the Court ( Delvecchio v. Bayside Chrysler Plymouth Jeep Eagle, Inc., 271 AD2d 636 [2nd Dept. 2000]). Indeed, "[a] motion for leave to renew is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation" ( Lardo v. Rivlab Transportation. Corp. , 46 AD3d 759 [2nd Dept. 2007]). However, where the facts could not be known at the time of the original motion, or a reasonable justification is given for non-disclosure, the court may properly grant leave to renew ( Lafferty v. Eklecco, LLC , 34 AD3d 754 [2nd Dept. 2006]). Leave to renew is not warranted however where the factual material adduced in connection with the subsequent motion is merely cumulative with respect to the factual material submitted in connection with the original motion ( Orange and Rockland Utilities, Inc. v. Assessor of Town of Haverstraw, 304 AD2d 668, 669 [2nd Dept. 2003]). Although leave to renew may be granted at the trial court's discretion, even where the additional facts were known to the party seeking renewal at the time of the original motion ( Daniel Perla Assoc. v. Ginsberg, 256 AD2d 303 [2nd Dept. 1998]), it should be denied unless the moving party offers a reasonable excuse as to why the additional facts were not submitted on the original application ( Governmental Employees Ins. Co. v. Woney, 293 AD2d 539 [2nd Dept. 2002]).
In support of their instant motion, the plaintiffs claim that the discovery of new evidence that was unknown to them at the time of the underlying motion entitles them to renew their opposition to the motion for summary judgment. Specifically, plaintiffs submit that through the underlying opposition to summary judgment submitted by counsel for Bellmore Fire District and Lynch, they became aware of new evidence of prior similar accidents at the subject intersection. Plaintiffs submit that the Fire District and Lynch's opposition revealed evidence, obtained from an investigator Craig Saperstein, of numerous prior accidents at the same intersection which also involved claims that both sides of the traffic signal had green lights. Further, plaintiffs submit that after the County moved for summary judgment, their own investigator discovered evidence of a prior similar accident at the same intersection. The witness plaintiffs discovered, Craig Saperstein, was the same witness that defendants Lynch and the Fire District discovered and said witness' affidavit, which was obtained after the underlying motion for summary judgment, was not considered by Justice McCarty in determining the underlying motion.
The fact that the Fire District and Lynch's papers contained the same evidence on which plaintiff relies herein — to wit, the affidavit of Craig Saperstein — does not preclude the granting of this renewal motion. The evidence from witness Craig Saperstien was unknown to the plaintiffs at the time of the defendants' motions for summary judgment. His affidavit, which is now attached to plaintiffs' motion to renew and reargue, was not before the Court at the time of the Court's determination of the defendants' motion for summary judgment. The other defendants may have been aware of Saperstein's existence at the time they sought summary judgment, but the plaintiffs were not. "A motion for leave to renew must be based upon new or additional facts which, although in existence at the time of the original motion, were not made known to the party seeking renewal, and, therefore, were not known to the court" ( Morrison v. Rosenberg, 278 AD2d 392 [2nd Dept. 2000]).
Thus, while Justice McCarty was presented with the evidence of witness Craig Saperstein on the underlying motions, the plaintiffs did not have the opportunity to review and present the evidence in a detailed and persuasive manner in support of their argument against defendants' underlying motions.
In light of the foregoing undisputed facts of the "newly" discovered evidence, this Court herewith grants plaintiffs' motion to renew its opposition to defendants' underlying motions ( Smith v. City of New York , 38 AD3d 641 [2nd Dept. 2007]).
It is clear that all of this evidence is relevant to the issues of, inter alia, the existence of a defective traffic signal, defendants' notice of the subject traffic light's defective condition and the defendants' negligent maintenance, operation, inspection and control of the subject traffic signal.
Therefore, plaintiffs' motion for an Order of this Court granting them leave to reargue and renew the Decision and Order of the Court (McCarty, J.) dated November 15, 2010 is granted in its entirety. Upon reargument and renewal, both defendants Welsbach and County's underlying motions for summary judgment are denied as material issues of fact exist.
This shall constitute the decision and order of this Court.