CRIMLIS v. [And Third–Party Actions] (2020)

Order, Supreme Court, New York County (Verna L. Saunders, J.), entered May 21, 2018, which granted defendant the City of New York's motion for summary judgment dismissing the complaint and all cross claims against it, unanimously affirmed, without costs.  Appeal from order, same court and Justice, entered February 27, 2019, which denied defendant/second third-party plaintiff Bleecker Tower Tenants Corp.'s motion to reargue (denominated a motion to renew and reargue), unanimously dismissed, without costs, as taken from a nonappealable order.

The City established its prima facie entitlement to judgment as a matter of law by submitting evidence demonstrating, among other things, that it did not own the property abutting the sidewalk where plaintiff slipped and fell, and that the abutting property was not an owner-occupied residential property with three or fewer units (Administrative Code of City of N.Y. § 7–210; see Cohen v. City of New York, 101 A.D.3d 426, 426, 955 N.Y.S.2d 565 [1st Dept. 2012]).  In opposition, Bleecker failed to raise an issue of fact.  Its argument that the City could be liable for improperly maintaining the area around plates or gratings in the sidewalk, is improperly raised for the first time on appeal and thus not preserved for review (see Pirraglia v. CCC Realty N.Y. Corp., 35 A.D.3d 234, 235, 828 N.Y.S.2d 6 [1st Dept. 2006]; Tortorello v. Carlin, 260 A.D.2d 201, 205, 688 N.Y.S.2d 64 [1st Dept. 1999]).  Bleecker's contention that the motion was premature because the City's witnesses had not yet been deposed is unavailing.  Bleecker's assertion that further discovery may uncover facts essential to establish opposition is based

on nothing more than speculation.  Additionally, Bleecker failed to show that evidence necessary to defeat the motion was within the City's exclusive control (see Fulton v. Allstate Ins. Co., 14 A.D.3d 380, 381, 788 N.Y.S.2d 349 [1st Dept. 2005]; Denby v. Pace Univ., 294 A.D.2d 156, 156–157, 741 N.Y.S.2d 408 [1st Dept. 2002]).

Bleecker's motion denominated as one for leave to renew and reargue was not based on new facts unavailable at the time of the City's summary judgment motion, and was therefore actually a motion to reargue, the denial of which is not appealable (see Matter of Pettus v. Board of Directors, 155 A.D.3d 485, 485–486, 65 N.Y.S.3d 21 [1st Dept. 2017], lv denied 31 N.Y.3d 1113, 80 N.Y.S.3d 215, 105 N.E.3d 354 [2018]).