SCANNELL v. [And A Third Party Action.] (1998)

Order, Supreme Court, New York County (Leland DeGrasse, J.), entered on or about November 3, 1997, which denied plaintiffs' motion for leave to renew a prior motion to vacate an order of the court dated September 19, 1996, granting defendants' motion for partial summary judgment upon default, dismissing plaintiffs' Labor Law §§ 240(1) and 241(6) claims, unanimously reversed, on the law and in the exercise of discretion, without costs, the motion to renew granted and upon renewal, the September 19, 1996 order vacated to the extent that it dismissed plaintiffs' Labor Law § 241(6) claim, said claim is reinstated and the matter remitted to Supreme Court for further proceedings.

 The IAS court improvidently exercised its discretion here in denying the motion to renew where plaintiffs provided additional evidence not previously before the court, offered a reasonable excuse for their failure to include the additional submissions in the original motion, and demonstrated the merit of their action, and there is no claim of prejudice by defendants (see, American Continental Properties v. Natl. Union Fire Ins. Co., 200 A.D.2d 443, 446, 608 N.Y.S.2d 807;  Segall v. Heyer, 161 A.D.2d 471, 473, 555 N.Y.S.2d 738).   The court has broad discretion on a motion to renew and the fact that the additional evidence was available at the time of the original motion is not dispositive (Framapac Delicatessen v. Aetna Casualty and Surety Co., 249 A.D.2d 36, 670 N.Y.S.2d 491).   Here, the additional information addressed an issue raised sua sponte by the court in the original decision.   In such circumstances, it is error for the court not to consider the additional information (Bevona v. Superior Maintenance Co., 204 A.D.2d 136, 138, 611 N.Y.S.2d 193).

 Plaintiffs demonstrated the merit of their Labor Law § 241(6) claim by alleging the violation of concrete specifications of the Industrial Code [12 NYCRR parts 4-59] (Ross v. Curtis-Palmer Hydro-Electric Co., 81 N.Y.2d 494, 505, 601 N.Y.S.2d 49, 618 N.E.2d 82).   Plaintiff Edward Scannell was injured when he tripped over building materials strewn over the work site.   Plaintiffs assert violations of sections 12 NYCRR 23-1.7(e)(1) and 23-2.1(a)(1), which require that building materials on work sites be stored in such manner as not to obstruct passageways or to cause tripping and have been held sufficient to support a § 241(6) claim (see, e.g., Sergio v. Benjolo N.V., 168 A.D.2d 235, 562 N.Y.S.2d 476;  Herman v. St. John's Episcopal Hosp., 242 A.D.2d 316, 678 N.Y.S.2d 635;  Lehner v. Dormitory Auth., 221 A.D.2d 958, 633 N.Y.S.2d 911).   Plaintiffs, however, did not address the merits of their Labor Law § 240(1) claim, and hence we do not disturb the summary judgment order insofar as it dismissed that claim.

MEMORANDUM DECISION.