KRAELING v. Cbf Managing Corp., third-party defendant, Rosegay Holding Corp., et al., third-party defendants-respondents.

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Supreme Court, Appellate Division, Second Department, New York.

Mitchell KRAELING, et al., plaintiffs-respondents, v. LEADING EDGE ELECTRIC, defendant third-party plaintiff-appellant; Cbf Managing Corp., third-party defendant, Rosegay Holding Corp., et al., third-party defendants-respondents.

Decided: December 29, 2003

LEO F. McGINITY, J.P., DANIEL F. LUCIANO, ROBERT W. SCHMIDT, and REINALDO E. RIVERA, JJ. Harms, Mahon, Finneran, Gialleonardo & Whelan (Mauro, Goldberg & Lilling, LLP, Great Neck, N.Y. [Caryn L. Lilling and Jennifer B. Ettenger] of counsel), for defendant third-party plaintiff-appellant. William F. Chimeri, Freeport, N.Y., for plaintiffs-respondents. O'Connor, O'Connor, Hintz & Deveney, LLP, Melville, N.Y. (Robin Mary Heaney and Brian T. Deveney of counsel), for third-party defendants-respondents.

In an action to recover damages for personal injuries, etc., the defendant third-party plaintiff appeals from (1) an order of the Supreme Court, Kings County (Schmidt, J.), dated August 5, 2002, which denied its motion, inter alia, for summary judgment dismissing the complaint and granted the cross motion of the third-party defendants Rosegay Holding Corp. and Jerome J. Rosenberg for summary judgment dismissing the third-party complaint insofar as asserted against them, and (2) an order of the same court dated March 10, 2003, which denied its motion for leave to renew the cross motion of the third-party defendants Rosegay Holding Corp. and Jerome J. Rosenberg.

ORDERED that the orders are affirmed, with one bill of costs to the respondents appearing separately and filing separate briefs.

 The plaintiff Mitchell Kraeling allegedly was injured when he hit his head on a partially-rolled down security gate which was being repaired by the defendant third-party plaintiff, Leading Edge Electric (hereinafter Leading Edge).   Leading Edge contends that its motion, inter alia, for summary judgment dismissing the complaint should have been granted because the position of the gate was open and obvious.   However, whether the position of the gate was open and obvious presents a triable issue of fact which goes only to the injured plaintiff's comparative culpability (see Cupo v. Karfunkel, 1 A.D.3d 48, 767 N.Y.S.2d 40;  Acevedo v. Camac, 293 A.D.2d 430, 740 N.Y.S.2d 380;  Chambers v. Maury Povich Show, 285 A.D.2d 440, 726 N.Y.S.2d 725).

 The Supreme Court properly granted the cross motion of the third-party defendants Rosegay Holding Corp. and Jerome J. Rosenberg (hereinafter the Rosenbergs) for summary judgment dismissing the third-party complaint insofar as asserted against them.   The Rosenbergs established their entitlement to judgment as a matter of law by demonstrating that they neither created nor had actual or constructive notice of the allegedly dangerous condition.   Leading Edge failed to raise a triable issue of fact in opposition (see Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837-838, 501 N.Y.S.2d 646, 492 N.E.2d 774;  Irons v. Four T. Assocs., 293 A.D.2d 652, 740 N.Y.S.2d 446;  Chemont v. Pathmark Supermarkets, 279 A.D.2d 545, 720 N.Y.S.2d 148;  Seneglia v. FPL Foods, 273 A.D.2d 221, 709 N.Y.S.2d 842;  Campbell v. Great Atl. & Pac. Tea Co., 257 A.D.2d 642, 684 N.Y.S.2d 572;  Dwoskin v. Burger King Corp., 249 A.D.2d 358, 671 N.Y.S.2d 494).   In opposition to the Rosenbergs' motion for summary judgment, Leading Edge also failed to show that it had an inadequate opportunity to conduct discovery, and failed to specify what facts, necessary to oppose the motion, were uniquely in the Rosenbergs' possession (see CPLR 3212[f];  Miller v. City of New York, 277 A.D.2d 363, 364, 717 N.Y.S.2d 198;  Adelstein v. Waterview Towers, 250 A.D.2d 790, 791, 673 N.Y.S.2d 465;  Greenberg v. McLaughlin, 242 A.D.2d 603, 604, 662 N.Y.S.2d 100;  Delaney v. Good Samaritan Hospital, 204 A.D.2d 678, 612 N.Y.S.2d 433;  Home Sav. Bank v. Arthurkill Assocs., 173 A.D.2d 776, 570 N.Y.S.2d 644;  Kracker v. Spartan Chem. Co., 183 A.D.2d 810, 813, 585 N.Y.S.2d 216;  Hecht v. Vanderbilt Assocs., 141 A.D.2d 696, 700, 529 N.Y.S.2d 818).

 Additionally, the Supreme Court providently exercised its discretion in denying the motion of Leading Edge for leave to renew, as Leading Edge propounded no reasonable excuse for failing to elicit, during discovery, the new facts upon which it relied (see Matter of Shapiro v. State of New York, 259 A.D.2d 753, 687 N.Y.S.2d 401).   In any event, there is no support in the record for the contention of Leading Edge, made in connection with its motion for leave to renew, that the non-uniform rise of the steps comprising the staircase, or any alleged violation of the New York City Building Code arising from the placement and configuration of the steps, proximately caused the injured plaintiff to strike his head on the gate (see Ahmed v. Display Dye Cutting, 235 A.D.2d 257, 652 N.Y.S.2d 29;  Barnes v. Park Cong. Church, 145 A.D.2d 889, 536 N.Y.S.2d 224;  see also Bovasso v. Tower 45 Ltd. Partnership, 278 A.D.2d 79, 717 N.Y.S.2d 578).   Therefore, the result would have been no different had the Supreme Court considered those new facts (see Amodeo v. State of New York, 257 A.D.2d 748, 749, 683 N.Y.S.2d 337;  see also Suffolk & Nassau Amusement Co. v. Wurlitzer Co., 24 A.D.2d 893, 894, 264 N.Y.S.2d 847).

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