Opinion
No. 17440 Index No. 301364/16E Case No. 2021-02856
03-02-2023
Gilbert Sanchez, Plaintiff-Appellant, v. Colorado Associates, LLC, Defendant-Respondent. [And a Third-Party Action]
Gorayeb & Associates, P.C., New York (John M. Shaw of counsel), for appellant. Perry, Van Etten, Rozanski & Kutner, LLP, New York (Jeffrey K. Van Etten of counsel), for respondent.
Gorayeb & Associates, P.C., New York (John M. Shaw of counsel), for appellant.
Perry, Van Etten, Rozanski & Kutner, LLP, New York (Jeffrey K. Van Etten of counsel), for respondent.
Before: Moulton, J.P., González, Scarpulla, Shulman, JJ.
Order, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered July 21, 2021, which granted defendant's motion for leave to renew plaintiff's motion for partial summary judgment and, upon renewal, denied plaintiff's motion for summary judgment as to liability on the Labor Law § 240(1) claim, unanimously affirmed, without costs.
The court providently exercised its discretion in granting defendant's renewal motion in the interest of justice (see 490-492 Amsterdam Ave. Hous. Dev. Fund Corp. v O'Neal, 144 A.D.3d 585, 585 [1st Dept 2016]; QBE Ins. Corp. v Hudson Specialty Ins. Co., 82 A.D.3d 595, 596 [1st Dept 2011]). Defendant did not advance a new legal theory on renewal; rather, defendant presented new evidence from plaintiff's employer that plaintiff's accident occurred at a different site.
Defendant also provided a reasonable excuse for its delay in obtaining the evidence it presented upon renewal. Defendant demonstrated that it was unaware that plaintiff's accident occurred at a different site and that its investigation into the accident was stymied by third-party defendant's refusal to comply with discovery and plaintiff's employer's refusal to comply with requests for information. Because the new evidence raised a triable issue of fact as to whether plaintiff's accident occurred at a site owned by defendant, the court properly modified the prior order by denying plaintiff's motion for partial summary judgment on the Labor Law § 240(1) claim.