Opinion
Index No.: 4846/09 Motion Cal. No.: 29 Motion Seq. No.: 4
07-02-2012
Natali Del Rosario Lopez de Urgiles, as Administratrix of the Estate of Ronald Urgiles, Plaintiff, v. 181 Varick Street LLC, and Kam Cheung Construction, Defendant.
Short Form Order
Present: HONORABLE BERNICE D. SIEGAL
Justice
The following papers numbered 1 to 9 read on this motion for an order pursuant to CPLR 2221(e), for leave to renew Defendants, 181 Varick Street, LLC and Kam Cheung Construction ("Defendant"), opposition to plaintiff's motion for summary judgment on liability based on new evidence showing a dispute in fact as to whether Labor Law 240(1) was violated; (b) vacating this Court's June 23, 2011 decision granting plaintiff's motion for partial summary judgment pursuant to Labor Law 240(1) was violated and issuing a new order denying plaintiff's motion for summary judgment; and (c) staying the trial in this matter, currently schedule for March 29, 2012, pending the determination of this motion.
+-----------------------------------------------+ ¦ ¦PAPERS ¦ ¦ ¦ ¦ ¦ ¦NUMBERED¦ +--------------------------------------+--------¦ ¦Notice of Motion - Affidavits-Exhibits¦1 - 4 ¦ +--------------------------------------+--------¦ ¦Affirmation in Opposition ¦5 - 9 ¦ +-----------------------------------------------+
Upon the foregoing papers, it is hereby ordered that the motion is resolved as follows:
Defendants, 181 Varick Street LLC and Kam Cheung Construction ("Defendants"), move for an order pursuant to CPLR §2221(e) for leave to renew defendants' opposition to plaintiff's motion for summary judgment on liability based on new evidence not offered at the time of plaintiff's motion for summary judgment that would show a dispute in fact as to whether Labor Law §240(1) was violated. Defendants also move to vacate this Court's order, dated June 23, 2011, granting plaintiff's motion for partial summary judgment pursuant to Labor Law §241(1), and issuing a new order denying plaintiff's motion for summary judgment.
Facts
This is an action for personal injuries plaintiff-decedent Ronald Urgiles ("Plaintiff") allegedly sustained as a result of an accident, which occurred on November 7, 2008, at approximately 3:00 p.m., in the course of his employment with IBK Construction Group, LLC ("IBK"), and on the premises located at 179 Varick Street, New York, New York. Plaintiff asserts that Danny Vazquez ("Vazquez"), his boss/co-worker, was standing on a ladder removing beams from the ceiling above and handing them to him to place on the floor; that plaintiff was standing on the floor approximately three and half feet below the ceiling; and that the beams weighed between ten and fifteen pounds. Plaintiff also asserts that while Vazquez was attempting to remove a beam from the ceiling, Vazquez took out the support when he hit a metal beam with a hammer causing two beams to fall striking plaintiff in his right thigh. Plaintiff further asserts that he also sustained injuries while attempting to avoid being struck by the falling beams. Plaintiff allegedly sustained severe injuries to his back and lower extremities.
On June 23, 2011, this Court partially granted plaintiff's motion for summary judgment as a result of defendants' failure to submit admissible evidence to raise an issue of fact that the metal beam that struck plaintiff fell from an elevated height and to rebut plaintiff's prima facie showing of entitlement to summary judgment as to Labor Law §240(1).
On or about December 28, 2011, Defendants obtained an affidavit from Tyrone James ("James"), an eyewitness to plaintiff's accident. Defendants assert that, even though defendants had tried for ten months to locate James, he was not located until then because James was out of the country during defendants' attempts to locate him.
Contentions
Defendants contend that they proffer new facts in James's affidavit that were neither available nor offered at the time of plaintiff's motion for summary judgment, which would raise an issue of fact as to whether the metal beam fell from an elevated height. Defendants further assert a reasonable justification for the failure to present James's affidavit at the time of plaintiff's motion for summary judgment, which is that James was out of the country for nearly a year while the underlying motion was pending.
In opposition, plaintiff asserts that defendants failed to demonstrate a reasonable justification for their failure to present such facts in the prior motion, and defendants failed to show that the consideration of these new facts would change this Court's prior grant of partial summary judgment.
For the reasons set forth below, defendants' motion for leave to renew defendants' opposition to plaintiff's motion for summary judgment pursuant to CPLR §2221(e) is denied.
Discussion
CPLR § 2221(e) provides, in pertinent part, that:
A motion for leave to renew: 1. shall be identified specifically as such; 2. shall be based upon new facts not offered on the prior motion that would change the prior determination . . . ; and 3. shall contain reasonable justification for the failure to present such facts on the prior motion.
"A motion for leave to renew is addressed to the sound discretion of the court." (Lawman v. Gap, Inc., 38 A.D.3d 852, 852-53 [2d Dept 2007]; Matheus v. Weiss, 20 A.D.3d 454, 454-55 [2d Dept 2005]; Mi Ja Lee v. Glicksman, 14 A.D.3d 669, 670 [2d Dept 2005]; Daniel Perla Associates v. Ginsberg, 256 A.D.2d 303, 303 [2d Dept 1998].) "[T]he movant must offer a reasonable justification for the failure to present those facts on the initial motion." (Eskenazi, 92 A.D.3d at 828-29; Schenectady Steel Co. v. Meyer Contracting Corp., 73 A.D.3d 1013, 1015 [2d Dept 2010]; Worrell, 43 A.D.3d at 437; Laffert v. Eklecco. LLC, 34 A.D.3d 754, 754-55 [2d Dept 2006].)
The question before the court is whether the Defendants proffered a reasonable justification for their failure to submit the James affidavit in opposition to the underlying motion. Defendants argue that, at the time plaintiff brought its motion for summary judgment, defendants were not able to locate James to obtain an affidavit as he was out of the country. Defendants assert that they retained an investigator, in December 2010, in response to plaintiff's motion for summary judgment. The investigator visited the last known address of James approximately fifteen times over a ten month period. Initially and at several times thereafter, James' grandmother informed the investigator that James was still in the country of Guyana. Defendants argue that, despite their best efforts, they were not able to obtain James's affidavit until December 28, 2011, which was after this Court's order, dated June 23, 2011, granting plaintiff's motion for partial summary judgment.
In opposition, plaintiff asserts that defendants failed to demonstrate a reasonable justification for its failure to present James's affidavit in the prior motion. Furthermore, plaintiff asserts that defendants were aware that James was a potential witness to plaintiff's alleged accident before August 17, 2009, the date in which defendants served its Response to Preliminary Conference Order together with the accident report listing James as a witness as an exhibit. Plaintiff also asserts that because James is not a party to this action, defendants could have obtained his affidavit at any point; instead, defendants waited until December 2010 to locate James.
"Leave to renew should be denied unless the moving party offers a reasonable excuse as to why the additional facts are not submitted on the original application." (Matter of Shapiro, 259 A.D.2d at 753; see also Sample v. Levada, 8 A.D.3d 465, 467 [2d Dept 2004]; O'Donnell v. Arrow Electronics, Inc., 294 A.D.2d 582, 582 [2d Dept 2002]; Kwang Bok Yi v. Seong Ahn, 278 A.D.2d 372, 372 [2d Dept 2000].) In essence, "'reasonable justification' for the failure to present such facts on the original motion must be presented." (Dervisevic v. Dervisevic, 89 A.D.3d 785, 786-87 [2d Dept 2011], citing CPLR §2221(e)(3); see also Eskenazi, 92 A.D.3d at 828-29; Schenectady Steel Co., 73 A.D.3d at 1015; Worrell, 43 A.D.3d at 437; Laffert, 34 A.D.3d at 754-55.) "[A] motion 'to renew is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation'." (May v. May, 78 A.D.3d 667, 667 [2d Dept 2010], quoting Renna v. Gullo, 19 A.D.3d 472, 473 [2d Dept 2005], quoting Rubinstein v. Goldman, 225 A.D.2d 328, 329 [2d Dept 1996].) The question though is"[w]hat constitutes a 'reasonable justification'," and answering this question "is within the Supreme Court's discretion." (Rowe v. NYCPD, 85 A.D.3d 1001, 1003 [2d Dept 2011], citing Heaven v. McGowan, 40 A.D.3d 583, 586 [2d Dept 2007]; see also Dervisevic, 89 A.D.3d at 787.)
Plaintiff argues that defendants knew that James was a potential witness and his affidavit and/or deposition would be needed, and that this was raised as early as August 17, 2009 when defendants served its Response to Preliminary Conference Order with the accident report listing James as a witness as an exhibit. However, defendants assert that they were unaware that an affidavit from James would be needed until they were served with the underlying motion for summary judgment.
John Fiordaliso, an Investigator, was hired by counsel for defendants to locate James. In his affidavit annexed to the renewal motion , Fiordaliso alleges that he attempted several times within a ten month period to obtain James's affidavit commencing in December 2010, the same time the underlying motion for summary judgment was made at the exact same location. Fiordaliso further alleges that he was told initially by James' grandmother, that James was in Guyana. The court also notes that the Fiordaliso failed to take additional steps once he was on notice that James was in Guyana. The defendants failed to set forth what steps were taken to obtain an affidavit from James while he was purportedly in Guyana or give an explanation for why such would be impractical. The investigator's repeated attempts to locate James at the same location is enigmatic to this court and is surely not proof of due diligence. Furthermore, James's Affidavit does not state that he had been in Guyana during the time in which defendants were trying to locate him nor does Plaintiff include an affidavit of the grandmother attesting to the hearsay statement contained in the investigator's submission. Instead, the James's Affidavit only recites the events that occurred on the date of plaintiff's alleged accident without any explanation as to where he had been and where, in fact, he was at the time he executed the affidavit. (Compare Gonzalez v VigoConstruction, 69 Ad3d 565 [2nd Dept 2010] (misidentification of eyewitness reasonable excuse for delay); DeCicco v Longendyke, 37 AD3d 934 [4th Dept 2007] (affidavit of witness regarding move to another state).) It is simply not enough to submit a hearsay statement that James was in Guyana for a year without any corroboration. Accordingly, affidavits of the investigator and James fail to set forth a reasonable justification.
While law office failure has been accepted as a reasonable excuse provided that the movant "submit[s] supporting facts to explain and justify the default", "mere neglect is not accepted as a reasonable excuse." (Cole-Hatchard v. Grand Union, 270 A.D.2d 447, 447 [2d Dept 2000]; see Ogunmoyin v. 1515 Broadway Fee Owner, LLC., 85 A.D.3d 991, 992 [2d Dept 2011]; Morales v. Perfect Dental, P.C., 73 A.D.3d 877, 878 [2d Dept 2010]; Morrison v. Rosenberg, 278 A.D.2d 392, 392 [2d Dept 2000]; Bravo v. New York City Housing Authority, 253 A.D.2d 510, 510 [2d Dept 1998].) Comparing law office failure to the facts here, the supporting facts to explain and justify the failure to obtain James's Affidavit at the time of the original motion is based on hearsay provided by James's grandmother. Barring the submission of her statements, defendants could have included a declaration sworn by James in his affidavit attesting to his alleged absence from New York during the time Plaintiff was purportedly attempting to obtain James' affidavit, but defendants failed to so. In essence, defendants failed to provide supporting facts to justify and prove why James was unavailable to obtain his affidavit; and this failure was mere neglect, which is not an acceptable reasonable excuse. Thus, defendants failed to proffer a reasonable justification as to why James's affidavit could not have been obtained at the time of plaintiff's original motion for summary judgment.
Conclusion
For the reasons set forth above, defendants' motion for leave to renew defendants' opposition to plaintiff's motion for summary judgment pursuant to CPLR §2221(e) is denied
This constitutes the decision and order of this court.
________________________
Bernice D. Siegal, J. S. C.