Opinion
22954/14
08-07-2019
A.C. an infant, BY his Mother and Natural Guardian, Edna Lizeth FAJARDO, Plaintiffs, v. The BRENTWOOD UNION FREE SCHOOL DISTRICT and The Twin Pines Elementary School, Defendants.
The following papers were read upon this motion:
Notice of Motion/Order to Show Cause X
Answering Papers X
Reply X
Briefs: Plaintiff's/Petitioner'sDefendant's/Respondent's
Defendants move this Court for an Order granting them leave to reargue their prior summary judgment motion pursuant to CPLR § 2221 (d) that resulted in this Court's March 13, 2019 Decision and Order denying defendants' motion. Defendants also request clarification of the Court's March 13, 2019 Decision and Order regarding plaintiff's claims that a defective condition existed on the playground.
With regard to the plaintiffs' claim that a dangerous and defective condition was located on defendants' premises, clarification is warranted. On page two (2) of the March 13, 2019 Decision and Order, the Court wrote, "this Court determines that there was no dangerous or defective condition on the subject apparatus referred to as the monkey bars/zip line." On page three (3) thereof, the Court further wrote, "[t]hus, as to the claim of a defective and dangerous condition as asserted in the Bill of Particulars, the defendants have established their prima facie entitlement to summary judgment as a matter of law..." Since defendants established their prima facie entitlement as to the dangerous and defective condition claim and there was no opposition to the original motion, plaintiffs failed to raise a triable issue of fact as to that specific claim. Although the Court did not specifically dismiss the claim of dangerous and defective condition, that was certainly the Court's intent given its determinations made with respect to that claim. Accordingly, as to that branch of defendants' motion seeking clarification, let it be clear that plaintiffs' claims as to dangerous and defective conditions enumerated in their Bill of Particulars are dismissed.
Concerning that branch of the instant motion seeking reargument of the Court's determination that defendants did not establish their prima facie entitlement to summary judgment on plaintiffs' claim of negligent supervision/improper instruction, CPLR § 2221 provides in pertinent part that it shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion... and shall be made within thirty days after service of a copy of the order determining the prior motion and written notice of its entry.
Defendants do not aver that their motion for reargument is timely made, nor do they submit any evidence of compliance with CPLR § 2221 (d)(3) (see Casas v. Consolidated Edison Company of New York, Inc. , 2012 NY Slip Op. 31627 [U] [Sup Ct New York County 2012] ). The copy of the Court's March 13, 2019 Decision and Order annexed as defendants' Exhibit B does not bear written notice of its entry by the Suffolk County Clerk, nor is there any indication that service of a copy of the Decision and Order was made. The instant motion was made on April 22, 2019, thirty-eight (38) days after the motion is dated. There is also no evidence submitted that a timely notice of appeal has been served and filed. Furthermore, this action is not electronically filed on NYSCEF, and the Court should not be compelled to retrieve files or documents from the Clerk's Office that were not submitted with a motion in order to determine whether the movants have established their burden (see generally Biscone v. JetBlue Airways Corporation , 103 AD3d 158 [2d Dept 2012] ; Sheedy v. Pataki , 236 AD2d 92, 97 [3d Dept 1997], lv denied 91 NY2d 805 [1998] ; Alizio v. Perpignano , 225 AD2d 723 [2d Dept 1996] ).
Accordingly, defendants' motion for reargument is denied unless defendants submit sufficient proof of compliance with CPLR § 2221 (d) (3) related to the making of the instant motion within 14 days of the date of this Decision/Order (on or before August 21, 2019), on notice to plaintiffs. If such proof is supplied, the Court will consider the papers that were submitted upon the instant motion. In other words, defendants will not be afforded a second opportunity to make a new motion for reargument.
The foregoing constitutes the Decision and Order of this Court.