CONCORD VILLAGE OWNERS INC v. [And a Third-Party Action].

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CONCORD VILLAGE OWNERS, INC., Plaintiff-Respondent, v. KEYSPAN CORPORATION, Defendant-Appellant, Trinity Communications Corp., et al., Defendants. [And a Third-Party Action].

Decided: December 29, 2009

ANDRIAS, J.P., FRIEDMAN, ACOSTA, DeGRASSE, ROMÁN, JJ. Cullen and Dykman LLP, Brooklyn (Patrick Neglia of counsel), for appellant. Dunnington, Bartholow & Miller LLP, New York (Carol A. Sigmond of counsel), for respondent.

Order, Supreme Court, New York County (Doris Ling-Cohan, J.), entered April 9, 2009, which, in an action for property damage caused by a ruptured gas main, insofar as appealed from, granted plaintiff's motion to reargue and, upon reargument, denied defendant Keyspan Corporation's previously granted motion for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

The motion court providently exercised its discretion in granting reargument (see Sheridan v. Very, Ltd., 56 A.D.3d 305, 867 N.Y.S.2d 88 [2008]; Security Pac. Natl. Bank v. Evans, 31 A.D.3d 278, 281, 820 N.Y.S.2d 2 [2006], appeal dismissed 8 N.Y.3d 837, 830 N.Y.S.2d 8, 862 N.E.2d 86 [2007] ). Keyspan was on notice of the theory alleging that it was negligent in failing to provide complete and accurate information as to the precise location of the ruptured gas line, since the theory had been advanced in the complaint of another party in the consolidated action, had been raised in plaintiff's opposition papers on the prior motion and had been the subject of extensive deposition testimony (see Manhattan Ctr. for Early Learning Inc. v. New York Child Resource Ctr., Inc., 59 A.D.3d 365, 873 N.Y.S.2d 306 [2009]; see also Ramos v. Jake Realty Co., 21 A.D.3d 744, 745, 801 N.Y.S.2d 566 [2005] ). Furthermore, the record demonstrates that there are triable issues of fact as to this theory of liability.

We have considered Keyspan's other contentions and find them unavailing.