MILLSON v. ARNOT REALTY CORPORATION (1999)

 Plaintiffs appeal from an order of Supreme Court that dismissed the Labor Law § 200 claim and common-law negligence cause of action against defendants.   Plaintiffs contend that the court improperly vacated its earlier order denying that relief and should not have granted the motions for reargument on that claim and cause of action.   While a motion to reargue ordinarily may not be made after the period for appealing the prior order has expired (see generally, Siegel, N.Y. Prac. § 254, at 414 [3rd ed.], citing Liberty Natl. Bank & Trust Co. v. Bero Constr. Corp., 29 A.D.2d 627, 286 N.Y.S.2d 287;  Matter of Barnes [Council 82, AFSCME], 235 A.D.2d 826, 652 N.Y.S.2d 383), “a motion for reargument may be brought after the time to appeal has expired if a notice of appeal has been timely filed and the motion is brought prior to the submission of the appeal or at the latest before the appeal is determined” (Bray v. Gluck, 235 A.D.2d 72, 74, 663 N.Y.S.2d 725, lv. dismissed 91 N.Y.2d 1002, 676 N.Y.S.2d 129, 698 N.E.2d 958;  see, Lachman v. Lachman [appeal No. 2], 258 A.D.2d 875, 684 N.Y.S.2d 743;   Bermudez v. New York City Hous. Auth., 199 A.D.2d 356, 357, 605 N.Y.S.2d 352).   That exception to the general rule applies here.

 The court properly dismissed the Labor Law § 200 claim.   It is undisputed that defendants and third-party defendant did not supervise or control the activities of Thomas Millson (plaintiff).   Plaintiffs contend, however, that third-party defendant had “the authority to control the activity bringing about the injury to enable it to avoid or correct an unsafe condition” (Russin v. Picciano & Son, 54 N.Y.2d 311, 317, 445 N.Y.S.2d 127, 429 N.E.2d 805;  see, Rizzuto v. Wenger Contr. Co., 91 N.Y.2d 343, 352, 670 N.Y.S.2d 816, 693 N.E.2d 1068).   We conclude that third-party defendant's use of the scarifier did not create the condition that caused plaintiff's injury (cf., Goettelman v. Indeck Energy Servs. of Olean, 262A.D.2d 958, 692 N.Y.S.2d 541).   Additionally, both the Labor Law § 200 claim and common-law negligence cause of action were properly dismissed because defendants and third-party defendant established that the “alleged hazardous condition was readily observed and known to plaintiff before his accident”, and plaintiffs failed to raise an issue of fact (Pasquale v. City of Buffalo, 255 A.D.2d 874, 680 N.Y.S.2d 140;  see, Shandraw v. Tops Mkts., 244 A.D.2d 997, 998, 665 N.Y.S.2d 486).

Order unanimously affirmed without costs.

MEMORANDUM: