Opinion
No. 22221/06.
2013-04-11
Erica WINZELBERG, Plaintiff, v. 1319 50TH REALTY CORP., Hisachdus Avreichim of Vein, Fimor Construction & Development Corp., WCH–Fimor Construction Corp., Ernest Keller, R.A., and J.T. Concrete, Inc., Defendants, Fimor Construction & Development Corp., and Fimor Construction Corp., s/h/a/ WCH–Fimor Construction Corp., Third-party Plaintiffs, J.T. Concrete, Inc., Third-party Defendant, Fimor Construction & Development Corp., and Fimor Construction Corp., s/h/a/ WCH–Fimor Construction Corp., Second Third-party Plaintiffs, River Concrete, Inc., Second Third-party Defendant.
Litchfield Cavo, LLP, New York, for Third-party Plaintiffs, Second Third-party Plaintiffs. Novack Burnbaum Crystal, LLP, New York, for Defendant.
Litchfield Cavo, LLP, New York, for Third-party Plaintiffs, Second Third-party Plaintiffs. Novack Burnbaum Crystal, LLP, New York, for Defendant.
DAVID SCHMIDT, J.
The following papers numbered 1 to 5 read herein:
+-----------------------------------------------------------------------------+ ¦Papers ¦Numbered ¦ +------------------------------------------------------------------+----------¦ ¦Notice of Motion/Order to Show Cause/Petition/Cross Motion and ¦1–2 ¦ ¦Affidavits (Affirmations) Annexed ¦ ¦ +------------------------------------------------------------------+----------¦ ¦Opposing Affidavits (Affirmations) ¦3 ¦ +------------------------------------------------------------------+----------¦ ¦Reply Affidavits (Affirmations) ¦4 ¦ +------------------------------------------------------------------+----------¦ ¦Affidavit (Affirmation) ¦ ¦ +------------------------------------------------------------------+----------¦ ¦Other Papers: Transcript of Oral Argument ¦5 ¦ +-----------------------------------------------------------------------------+
Upon the foregoing papers, the motion by defendants/ third-party plaintiffs/ second third-party plaintiffs Fimor Construction & Development Corp. and Fimor Construction Corp., s/h/a WCH–Fimor Construction Corp. (collectively Fimor or movants), for leave to reargue the prior motion of defendants 1319 50th Realty Corp. and Hisachdus Avreichim of Vein (collectively the synagogue defendants or respondents), for summary judgment is denied.
Background
The underlying action was commenced by the plaintiff, Erica Winzelberg, for damages sustained to her apartment building by construction of a synagogue on the adjacent property owned by the synagogue defendants. Fimor is the general contractor who was hired by respondents to supervise the construction. By order dated June 1, 2012, plaintiff was granted partial summary judgment on the issue of liability against both movant and respondents. Respondents subsequently moved for summary judgment on the issues of common-law indemnification and attorney's fees against Fimor. By order dated August 16, 2012, this court granted the respondents' motion for summary judgment. It is the August 16th order that forms the basis for the instant motion for reargument.
On October 22, 2012, a “clarifying order” was signed by this court which clarified the use of the pronoun “their” in the August 16th order as well as recited the papers, and oral argument, upon which the original order was predicated. As the orders were, in all other aspects, similar, the court makes no issue of the fact that Fimor has sought reargument of the August 16th order rather than the October 22nd.
On reargument, Fimor alleges, among other things, that the court has overlooked or misapprehended continuing issues of fact as to the respondents' “potential active negligence” arising from the acts or omissions of their engineer and agent, Brian Flynn, P.E. (Flynn), and from respondents' failure to diligently oversee Flynn's actions. In opposition to reargument, respondents allege that the movant is merely making the same argument as contained in his opposition papers to the original motion as well as additional arguments raised here for the first time. For these reasons, respondents contend that Fimor's request for reargument should be denied.
Discussion
It is well settled that “[a] motion for reargument, addressed to the discretion of the court, is designed to afford a party an opportunity to establish that the court overlooked or misapprehended the relevant facts, or misapplied any controlling principle of law. Its purpose is not to serve as a vehicle to permit the unsuccessful party to argue once again the very questions previously decided ( internal citations omitted )” (Foley v. Roche, 68 A.D.2d 558, 567 [1979] ). “A motion for reargument is not designed to provide an unsuccessful party with successive opportunities to present arguments different from those already presented” (Woody's Lbr. Co. v. Jayram Realty, 30 AD3d 590, 593 [2006],quoting Gellert & Rodner v. Gem Community Mgt., 20 AD3d 388 [2005] ). Similarly, a motion for reargument shall not include matters of fact not offered on the prior motion ( see Cruz v. Masada Auto Sales, LTD., 41 AD3d 417, 418 [2007],quotingCPLR 2221[d][2] ).
The movant makes substantially the same argument here as that made within its affirmation in opposition to respondents' original summary judgment motion, to wit, that the synagogue defendants assumed an active role in supervising the construction through their engineer and agent, Flynn. Fimor again alleges that the synagogue defendants' failure to diligently oversee Flynn's activities “raise[s] the prospect of at least some liability ultimately being attached ... to the synagogue defendants.” After reviewing the parties' submissions, including diligent consideration of oral argument on the motion, the court rejected the movant's premise and issued its August 16, 2012 order, granting summary judgment in respondents' favor. It remains undisputed that the damage to the plaintiff's building began prior to the synagogue defendants hiring Flynn thus, any effect Flynn's involvement has on the issues at bar would be best addressed during the damages phase of trial as he was uninvolved at the outset of the complained of harm to the plaintiff's building.The synagogue defendants had established entitlement to summary judgment on their claim of common-law indemnification by introduction of documentary evidence, including the May 5, 2002 contract with Fimor, and deposition testimony establishing that Fimor was the general contractor who exercised actual supervision and control over the construction project ( see McCarthy v. Turner Constr., Inc., 17 NY3d 369 [2011] ). Having found common-law indemnification, the synagogue defendants were, as admitted by respondents within the instant motion, entitled to attorney's fees as well.
Alternatively, Fimor contends that reargument should be granted under two additional theories. Movant contends the court erred in granting summary judgment because either (1) the defendants' relative liability has yet to be determined or, (2) to seek common law indemnification, the respondents must first prove their own lack of negligence. Fimor had, within its affirmation in opposition and oral argument on the summary judgment motion, a full and fair opportunity to oppose said motion and failed to raise these instant theories. The issues presented on reargument were clear at the time of the respondents' original motion and movant offers no explanation for its failure to make the instant arguments at that time. The law on this issue is well settled and movants may not now seek redress through the vehicle of reargument. As such arguments were not part of movants' opposition to the underlying motion, same are improperly raised on reargument herein ( see Woody's Lbr. Co., 30 AD3d at 593).
Inasmuch as Fimor has failed to show that the court overlooked or misapprehended the law or facts and is merely attempting to rehash questions already decided, movants have not made a sufficient showing on the motion therefore, this court declines to exercise its discretion to grant reargument ( see Foley, 68 A.D.2d, at 567;American Trading Co., 87 Misc.2d, at 195).
Conclusion
Accordingly, the motion by Fimor is, in all respects, denied. The court, having considered the movants' remaining contentions, finds them unavailing.
The foregoing constitutes the decision and order of this court.