Opinion
May 10, 1999
Appeal from the Supreme Court, Westchester County (Fredman, J.).
Ordered that the appeal from the order entered June 26, 1998, is dismissed, as no appeal lies from an order denying a motion for reargument; and it is further,
Ordered that the order entered April 8, 1998, is modified by deleting the provision thereof granting those branches of the motions which were for summary judgment dismissing the plaintiffs' cause of action under Labor Law § 240 Lab.(1) and substituting therefor a provision denying those branches of the motions; as so modified, the order is affirmed insofar as appealed from, and so much of the complaint as asserted a cause of action under Labor Law § 240 Lab. (1), is reinstated; and it is further,
Ordered that the plaintiffs are awarded one bill of costs.
The plaintiff William Gale (hereinafter the plaintiff) was employed by the third-party defendant Lawn Masters, Inc., to hydroseed a 33-home construction project in Cortland, New York. Hydroseeding consists of mixing water, grass seed, and mulch in a tank and then spraying this mixture, under pressure, onto the area where grass growth is intended. The plaintiff was injured when he fell off the back of the truck upon which the tank was mounted. He and his wife brought this action against the owner of the development site, the defendant third-party plaintiff Running Brook Builders, Inc. (hereinafter Running Brook), and the contractor, the defendant EZE Equipment Company, Inc. (hereinafter EZE), claiming violations of Labor Law §§ 200 Lab., 240 Lab.(1), and § 241 Lab.(6). Running Brook, EZE, and the third-party defendant Lawn Masters, Inc., moved for summary judgment dismissing the complaint.
Contrary to the Supreme Court's determination that the plaintiffs failed to demonstrate that hydroseeding was an integral and necessary part of the subject construction project, we find that the evidence was sufficient to establish that the hydroseeding was a part of the over-all site construction, and as such, falls under the ambit of Labor Law § 240 Lab. (1) ( see, Lombardi v. Stout, 80 N.Y.2d 290; Gavin v. Long Is. Light. Co., 255 A.D.2d 551).
The Supreme Court properly denied that branch of the plaintiffs' motion which was for leave to amend their bill of particulars ( see, Banfi Prods. Corp. v. Gentile, 236 A.D.2d 348).
We note that although the plaintiffs' characterized their subsequent motion as one for reargument and renewal, when a motion to renew is predicated upon information which could have been raised at the time of the original motion and was not, and the plaintiffs fail to offer an excuse as to why this was not done, such a motion will be deemed a motion to reargue, the denial of which is not appealable ( see, Carson v. New York City Tr. Auth., 237 A.D.2d 242).
S. Miller, J. P., Sullivan, Joy and Altman, JJ., concur.