Opinion
2001-03837.
Decided June 14, 2004.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Queens County (LeVine, J.), dated March 27, 2001, which granted the defendants' motion for summary judgment dismissing the complaint.
Vergilis, Stenger, Roberts, Pergament Viglotti, LLP, Wappingers Falls, N.Y. (Emanuel F. Saris of counsel), for appellants.
Steven G. Fauth, New York, N.Y. (Lowell D. Aptman of counsel), for respondents.
Before: FRED T. SANTUCCI, J.P., SONDRA MILLER, ROBERT W. SCHMIDT, STEVEN W. FISHER, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
The defendants established their prima facie entitlement to judgment as a matter of law, thereby shifting the burden to the plaintiffs to submit admissible evidence establishing a triable issue of fact ( see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851). In opposition to the defendants' motion, the plaintiffs failed to come forward with evidence sufficient to raise a triable issue of fact as to whether the defendants created or had notice of the alleged hazardous condition that caused the decedent to fall ( see Piacquadio v. Recine Realty Corp., 84 N.Y.2d 967; Winegrad v. New York Univ. Med. Ctr., supra; Schmidt v. Barstow Assocs., 276 A.D.2d 784; O'Rourke v. Williamson, Picket, Gross, 260 A.D.2d 260).
We note that the plaintiffs' brief refers to a subsequent order, dated June 28, 2001 denying the plaintiffs' motion denominated as one for leave to renew but which was actually one for leave to reargue. Because the motion was not based upon new facts which were unavailable at the time of the original motion, it was, in fact, a motion for leave to reargue. Therefore, the appeal from the order dated March 27, 2001, does not bring up for review the order dated June 28, 2001, denying the motion, in effect, for leave to reargue ( see CPLR 5517; see also Absolute Fin. Servs. v. 535 Broad Hollow Realty, 292 A.D.2d 327; Sallusti v. Jones, 273 A.D.2d 293; Bossio v. Fiorillo, 222 A.D.2d 476).
SANTUCCI, J.P., S. MILLER, SCHMIDT and FISHER, JJ., concur.