Opinion
December 22, 1998
Appeal from the Supreme Court, New York County (Leland DeGrasse, J.).
The IAS Court improvidently exercised its discretion here in denying the motion to renew where plaintiffs provided additional evidence not previously before the court, offered a reasonable excuse for their failure to include the additional submissions in the original motion, and demonstrated the merit of their action, and there is no claim of prejudice by defendants ( see, American Continental Props. v. National Union Fire Ins. Co., 200 A.D.2d 443, 446; Segall v. Heyer, 161 A.D.2d 471, 473). The court has broad discretion on a motion to renew and the fact that the additional evidence was available at the time of the original motion is not dispositive ( Framapac Delicatessen v. Aetna Cas. Sur. Co., 249 A.D.2d 36). Here, the additional information addressed an issue raised sua sponte by the court in the original decision. In such circumstances, it is error for the court not to consider the additional information ( Matter of Bevona v. Superior Maintenance Co., 204 A.D.2d 136, 138).
Plaintiffs demonstrated the merit of their Labor Law § 241 Lab. (6) claim by alleging the violation of concrete specifications of the Industrial Code (12 N.Y.CRR parts 4-59; Ross v. Curtis-Palmer Hydro-Elec. Co., 81 N.Y.2d 494, 505). Plaintiff Edward Scannell was injured when he tripped over building materials strewn over the work site. Plaintiffs assert violations of 12 NYCRR 23-1.7 (e) (1) and 12 NYCRR 23-2.1 (a) (1), which require that building materials on work sites be stored in such manner as not to obstruct passageways or to cause tripping and have been held sufficient to support a section 241 Lab. (6) claim ( see, e.g., Sergio v. Benjolo N.V., 168 A.D.2d 235; Herman v. St. John's Episcopal Hosp., 242 A.D.2d 316; Lehner v. Dormitory Auth., 221 A.D.2d 958). Plaintiffs, however, did not address the merits of their Labor Law § 240 Lab. (1) claim, and hence we do not disturb the summary judgment order insofar as it dismissed that claim.
Concur — Nardelli, J. P., Wallach, Rubin and Williams, JJ.