Opinion
13528/02.
Decided January 26, 2006.
Upon the foregoing papers, the motion of defendant/third-party plaintiff Wun Ying Fung for leave to reargue her prior motion for summary judgment is denied.
Plaintiff commenced this action to recover damages for personal injuries allegedly sustained when she slipped and fell on defective carpeting covering the interior stairs of certain residential premises owned by defendant and located at 197 Wirt Avenue, Staten Island, New York. At the time, plaintiff, her mother and stepfather (third-party defendants Carol Ann Sepe and Michael Sepe) were tenants in the subject premises. A default judgment in the third-party action was entered against the third-party defendants on December 12, 2003.
In moving for leave to reargue, defendant Fung maintains that in denying her prior motion for summary judgment dismissing the complaint in the prime action, the Court failed to recognize that plaintiff's sole basis for defeating summary judgment was an affidavit of the defaulting third-party defendant, Carol Ann Sepe. Pertinently, Ms. Sepe attests that four months prior to the accident in question, she complained in a telephone conversation with the landlord's daughter, Kit Yip (who was known to Ms. Sepe as the owner's representative), about the "torn, ripped and bunched up" carpeting on the stairs and asked that it be replaced. Ms. Sepe was allegedly informed at that time that if she paid her rent on time for one or two years, the carpet would be replaced. Ms. Sepe further attests that several days after this telephone conversation, she received a letter signed by defendant Wun Ying Fung, confirming the telephone conversation. In her reply papers on the original motion, defendant objected to the admissibility of Ms. Sepe's affidavit on the sole ground that "[p]laintiff cannot create an issue of fact with a statement which relies on a hearsay document not even produced."
It is alleged that defendant's daughter, Kit Yip, was the liaison for her mother since the latter did not speak English.
In the present application, movant maintains that in denying her prior motion for summary judgment, the Court overlooked the basic principal that a defaulting party is precluded from testifying at the time of trial on the issue of liability and, therefore, plaintiff will be unable to prove notice of the alleged defective condition of the carpet. On this basis, the moving defendant further contends that plaintiff's only evidence in opposition to her prior motion, i.e., the affidavit of a defaulting third-party was inadmissible in opposition to her summary judgment motion. Accordingly, defendant alleges that the Court erred in denying her motion for summary judgment on the basis of the Sepe affidavit.
In opposing reargument, plaintiff maintains that defendant has impermissibly interjected a new issue that was never advanced in support of summary judgment, i.e., the alleged incompetence of the affidavit of Carol Ann Sepe. In the alternative, plaintiff maintains that inadmissible evidence may be considered in opposition to a motion for summary judgment provided that it is not the only evidence relied upon. In this regard, plaintiff points to the corroborating deposition testimony of defendant's own witness, Kit Yip, who stated that on two occasions prior to the accident, Carol Ann Sepe had contacted her by telephone to complain about the carpet and to request that it be replaced because it was "old".
It is well established that a motion for leave to reargue is addressed to the sound discretion of the court and affords the moving party an opportunity to show that the court overlooked or misapprehended the facts or the law or for some other reason mistakenly arrived at its earlier decision ( see CPLR 2221[d][2]; Doirio v. City of New York, 202 AD2d 625 [2nd Dept 1994]). It is not to be used, however, as the means by which an unsuccessful party is permitted to argue again the same issues previously decided ( see Pro Brokerage v. Home Ins. Co., 99 AD2d 971 [1st Dept 1984]), or to provide an unsuccessful party with a second opportunity to present new or different arguments from those originally asserted ( see Gellert Rodner v. Gem Community Mgt., 20 AD3d 388 [2nd Dept 2005]; Amato v. Lord Taylor, Inc., 10 AD3d 374, 375 [2nd Dept 2004]).
In the instant matter, movant has failed to convince this Court that it misapprehended the law in denying the prior motion. The issue of whether or not Ms. Sepe will be precluded from testifying at any trial in the prime action on the issue of notice was not raised on the prior motion. Instead, defendant argued that Ms. Sepe's affidavit should be disregarded "as it refers to a document which is not only hearsay, but not even attached to the affirmation in opposition." The short answer to that argument is that so much of the affidavit as would demonstrate defendant's prior notice of the alleged defective nature of the carpet is based upon personal knowledge and is not hearsay. Moreover, it is incontrovertible that defendant's claim that the Court "either misapplied the law regarding Ms. Sepe's ability to testify at the time of trial or simply failed to address [this] issue" was not tendered on the original motion and, therefore, is not properly raised on reargument ( see Pryor v. Commonwealth Land Title Ins. Co., 17 AD3d 434, 435-436 [2nd Dept 2005]; Amato v. Lord Taylor, Inc., 10 AD3d at 375).
In any event, were the issue properly before it, this Court does not perceive that the principles which bar a defaulting party from contesting the merits of an action in which he or she is a party should have any application to another cause of action, e.g., to deprive an uninterested party of his or her day in court by withholding testimony on a critical issue ( see generally Bohun v. Collins, 6 Cow. 313 [Supreme Court of Judicature 1826], wherein the then-extent rules on the competency of witnesses were stated to bar the testimony of one of two trespassers either for or against the other under circumstances in which a default judgment had already been taken against the first trespasser in connection with the same event; accord Collins v. Ellis, 21 Wend. 397 [Supreme Court of Judicature 1839]).
In this regard, it is not inappropriate to refer, by way of analogy, to the balancing of interests which a court must routinely undertake in discovery matters, where one party's need for discovery is weighed against the special burden, if any, which it may impose on the other party ( see e.g. O.Neill v. Oakgrove Constr., 71 NY2d 521, rearg denied 72 NY2d 910) for the express purpose of "ensur[ing] that both plaintiff and defendant receive a fair trial" ( Kavanagh v. Ogden Allied Maintenance Corp., 92 NY2d 952, 955 [internal quotation marks omitted]). Manifestly, a trial can be no less a search for fairness than the discovery proceedings which preceded it, nor may a litigant's right to due process be thus impaired absent some overarching principle or purpose not evident in the case at bar.
Accordingly, it is
ORDERED, that defendant's motion for leave to reargue is denied.