Opinion
102068/07.
Decided January 25, 2011.
The motion of defendant Eberhart Construction Company, Inc. for leave to reargue is denied.
This is an action to recover damages for personal injuries allegedly sustained by plaintiff on August 13, 2006 when he fell into a trench, measuring approximately 6 feet wide by 3½ feet deep, which had been excavated by defendant Eberhart Construction Company, Inc. (hereinafter, "Eberhart"). At the time, plaintiff was performing construction work for his employer, nonparty Consolidated Edison, at the "Goethals Substation" on Staten Island. Consolidated Edison had retained Eberhart to perform certain construction work for the project which included excavating the subject trench. Eberhart claims to have completed this excavation work two days prior to plaintiff's accident, and had left the site before the injury occurred. To the extent relevant, plaintiff claims that his injuries were caused by defendant Eberhart's failure to erect any of the safety devices required by the Industrial Code ( 22 NYCRR Part 23), e.g., barriers, barricades, wooden planks, lights or caution tape, to warn workers of the presence of the trench.
In the present motion, defendant/subcontractor Eberhart seeks leave to reargue so much of the Decision and Order of this Court dated July 29, 2010 as denied that branch of its motion for summary judgment which was to dismiss plaintiff's claims against it for common-law negligence. In support, defendant contends that the Court (1) erred in finding that issues of fact exist as to whether Eberhart negligently failed to safeguard the trench, and (2) misapplied controlling case law in the Second Department regarding subcontractor liability when it analyzed plaintiff's common-law negligence claim under a different standard than it applied to his claim under Labor Law § 200. As to the former, it is alleged that the Court overlooked the deposition testimony of Eberhart's labor foreman, Robert Almond, who testified that Eberhart erected barricades, lights and caution tape upon completion of its excavation two days prior to the incident, and was not responsible for maintaining these safety devices after its work had ceased. With respect to the latter, Eberhart argues that the recent decision of the Second Department in Martinez v City of New York ( 73 AD3d 993 ) re-affirms the principle that claims against a subcontractor under Labor Law § 200 and common-law negligence rise or fall on whether or not the subcontractor in question supervised or controlled plaintiff's work. Here, the Court found that neither was present, but nevertheless failed to dismiss plaintiff's cause of action for common-law negligence against Eberhart.
In that Decision and Order, Eberhart was granted summary judgment dismissing plaintiff's claims against it under Labor Law §§ 241(6) and 200.
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]; Boboyev v Gomez, 304 AD2d 600; Doirio v City of New York, 202 AD2d 625). However, it is not to be used 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), or to present new or different arguments from those originally tendered ( see Gellert Rodner v Gem Community Mgt. Inc. , 20 AD3d 388 ; Pryor v Commonwealth Land Tit. Ins. Co. , 17 AD3d 434 , 435-436); Amato v Lord Taylor Inc. , 10 AD3d 374, 375).Consonant with these principles, defendant Eberhart has failed to demonstrate that this Court overlooked or misapprehended any relevant fact or the law in denying so much of its motion for summary judgment as sought dismissal of plaintiff's claim against it for common-law negligence. More particularly, the Court properly concluded that the deposition testimony of plaintiff and his supervisor, Stephen Guzowski, to the effect that there were no barricades, wooden planking or caution tape erected at the accident site, was sufficient to rebut the contradictory deposition testimony of Eberhart's labor foreman and raise a triable issue of fact. Simply restating or re-casting the same arguments previously rejected does not justify the granting of leave to reargue ( see Pryor v Commonwealth Land Tit. Ins. Co., 17 AD3d at 435-436; Amato v Lord Taylor Inc., 10 AD3d at 375 Boboyev v Gomez, 304 AD2d at 601; Pro Brokerage v Home Ins. Co., 99 AD2d at 971).
Finally, Eberhart's contention that plaintiff's common-law negligence claim against it should have been dismissed on the authority of, e.g., the recent decision of the Second Department in Martinez v City of New York ( supra) is unavailing. First, the holding in Martinez does not constitute an intervening change in the law ( see CPLR 2221[e][2]) which would alter the prior determination. In this regard, the Court takes note of the unimpeached determination of the same court in Kelarakos v Massapequa Water Dist. ( 38 AD3d 717 ). In Kelarakos, as here, plaintiff's claims against a subcontractor ("D M") under Labor Law §§ 200 and 241(6) were dismissed based, e.g., on its lack of "control" over plaintiff's work. Nevertheless, his cause of action against the same subcontractor sounding in common-law negligence was sustained ( id. at 719). The language of the Court is instructive:
Here, it is undisputed that D M neither controlled nor supervised the injured plaintiff's work since D M had completed its work and had left the construction site before the injured plaintiff even began [his] work. . . . Thus, D M was entitled to summary judgment dismissing the causes of action asserted against it which were predicated upon alleged violations of Labor Law §§ 200, 240(1), and 241(6).
Plaintiff was in the process of installing roof trusses during the construction of a storage garage for the Massapequa Water District when several allegedly collapsed and fell on him, causing injury.
However, the plaintiffs did raise questions of fact as to whether D M negligently performed its work. Specifically, the plaintiffs raised triable issues regarding whether D M improperly installed. . .hurricane clips and/or left uneven mortar mounds on the tops of the walls [where the roof trusses were intended to rest], and whether such factors could have caused the trusses to become unstable, thereby causing or contributing to the accident which injured [Nikiforos] Kelarakos. Accordingly, the Supreme Court properly denied that branch of D M's motion which was for summary judgment dismissing the plaintiffs' cause of action alleging common-law negligence ( id. at 719 [citations omitted]).
Similarly, in this case, summary judgment dismissing plaintiff's common-law negligence cause of action was denied notwithstanding Eberhart's lack of authority and control over plaintiff's work because issues of fact were raised as to whether Eberhart negligently failed to safeguard the trench which it admittedly excavated and, if so, whether it thereby created an unreasonable risk of harm to plaintiff and proximately caused his fall ( see Kelarakos v Massapequa Water Dist., 38 AD3d at 719; Bell v Bengomo Realty, Inc. , 36 AD3d 479 , 481; Ryder v Mount Loretto Nursing Home, 290 AD2d 892, 894). As later stated by the Second Department in the case upon which Eberhart purports to rely, the "element [of supervision and control] is only relevant. . .in cases where the injury arises from the manner in which [plaintiff's] work is performed" ( Martinez v City of New York, 73 AD3d at 998). Here, plaintiff's purported injuries arose not from the manner in which the work was performed, but rather from a dangerous condition allegedly created by Eberhart ( id. at 997).
Accordingly, it is
ORDERED, that defendant's motion for leave to reargue is denied.