Opinion
November 18, 1993
Appeal from the Supreme Court, New York County (Beatrice Shainswit, J.).
We agree with the IAS Court that the mere existence of water on railroad tracks, located below the street level of a train terminal where it is subject to freezing, is insufficient to raise the issue of whether the tracks were hazardous. Furthermore, even if the condition is presumed hazardous, there is no evidence to establish that defendant had actual or constructive knowledge of such condition to impose liability under the Federal Employers' Liability Act ( 45 U.S.C. § 51 et seq.; Gallose v Long Is. R.R. Co., 878 F.2d 80, 85, citing, inter alia, O'Hara v Long Is. R.R. Co., 665 F.2d 8, 9).
Plaintiff's motion to reargue was properly denied. The reasons advanced in support of the motion — that Supreme Court misapplied the standard for recovery under the act and that it failed to mention the ambient lighting conditions — assert that the court misapplied a controlling principle of law or misapprehended a material fact and, thus, the application clearly seeks reargument (Schneider v Solowey, 141 A.D.2d 813). Plaintiff's conclusory allegation, contained in his affidavit in support of reargument, that it was "common knowledge" that there were "leaky pipes" in the terminal does not render his application one for renewal. Even crediting the allegation as material to the conditions at the scene of his fall, plaintiff has supplied no excuse why this affidavit was not previously submitted (Mariani v Dyer, 193 A.D.2d 456, 458), and it is not alleged that he was unaware of this information at the time of the original motion (Pahl Equip. Corp. v Kassis, 182 A.D.2d 22, 27, lv denied in part and dismissed in part 80 N.Y.2d 1005).
Concur — Murphy, P.J., Kupferman, Ross and Rubin, JJ.