VEGA v. General Fence Corporation, Defendant.

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Minerva VEGA, Plaintiff–Respondent, v. RESTANI CONSTRUCTION CORP., et al., Defendants–Appellants, General Fence Corporation, Defendant.

Decided: August 14, 2012

TOM, J.P., SWEENY, CATTERSON, ACOSTA, MANZANET–DANIELS, JJ. Furey, Kerley, Walsh, Matera & Cinquemani, P.C., Seaford (Lauren B. Bristol of counsel), for appellants. Pollack Pollack Isaac & De Cicco, New York (Jillian Rosen of counsel), for respondent.

Order, Supreme Court, Bronx County (George D. Salerno, J.), entered December 31, 2009, which, to the extent appealed from as limited by the briefs, upon renewal, denied defendants Restani Construction Corp. and Excellent Asphalt Paving's motion for summary judgment, unanimously affirmed, without costs.

In this action for personal injuries allegedly sustained when plaintiff, a maintenance worker for the New York City Parks Department, attempted to move a garbage can containing improperly discarded concrete blocks, this Court previously affirmed an order denying summary judgment to General Fence, a codefendant-subcontractor (73 A.D.3d 641 [2010], affd 18 N.Y.3d 499 [2012] ). Co-defendants here are the general contractor, Restani Corporation, and subcontractor Excellent Asphalt Paving. They seek review of the denial of their motion for leave to renew an order denying their motion for summary judgment and/or leave to reargue that motion, as well as the denial of their motion for summary judgment.

Although defendants failed to comply with the requirements of CPLR 2221(e)(3) by not providing a reasonable justification for their failure to present the alleged new facts on the prior motion, under the circumstances, these failures do not require denial of the motion to renew (Mejia v. Nanni, 307 A.D.2d 870, 871 [2003] ). Accordingly, the December 31, 2009 order is modified to grant defendants' motion for leave to renew (see e.g. Sirico v. F.G.G. Prods., Inc., 71 A.D.3d 429 [2010] ).

Defendants motion for summary judgment, which, upon renewal, presents for this Court's consideration substantially the same issues based upon substantially the same record evidence as the prior appeal, is denied for the reasons set forth by the Court of Appeals in the companion case (18 N.Y.3d 499, 504 [2012] ).

We have considered defendants' remaining arguments and find them unavailing.