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Lucente v. Riverbay Corp.

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


January 13, 2009

JOHN LUCENTE, PLAINTIFF-RESPONDENT,
v.
RIVERBAY CORPORATION, ET AL., DEFENDANTS-APPELLANTS.

Order, Supreme Court, Bronx County (Stanley Green, J.), entered April 28, 2008, which, in an action for personal injuries sustained when plaintiff fell in a dark stairwell in defendants' building during the blackout of August 14, 2003, denied defendants' motion to renew their motion for summary judgment dismissing the complaint or, in the alternative, for a stay of trial pending issuance of the Court of Appeals' decision in Kopsachilis v 130 E. 18 Owners Corp. (43 AD3d 744 [2007], revd __ NY3d __, 2008 NY Slip Op 9431), unanimously affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Lippman, P.J., Sweeny, Catterson, Acosta, Renwick, JJ.

26386/03

Defendants' initial motion for summary judgment was denied as untimely by an order dated April 27, 2006 (CPLR 3212[a]), which defendants did not appeal. By order to show cause dated December 31, 2007, defendants moved to renew their summary judgment motion, arguing that this Court's decision in Viera v Riverbay Corp. (44 AD3d 577 [Oct. 30, 2007]) effected a change in the law that would necessarily change the court's denial of summary judgment (CPLR 2221[e][2]). Our decision in Viera, however, addressed whether, under the circumstances therein, defendant had a duty under common-law principles of premises liability to provide stairwell lighting during a blackout (44 AD3d at 579); in no manner did that decision involve the timeliness of a summary judgment motion. Furthermore, we decline to address the import of Viera for this case given the untimeliness of the motion. Nor did the stay of trial we issued on January 4, 2007 (2007 NY Slip Op 60256[U]) in connection with defendants' appeal from the denial of their motion to consolidate this action with Viera have any impact on the time limit for filing a motion for summary judgment. The motion court's statement in its decision denying renewal that even if renewal were granted questions of fact would remain that preclude the granting of summary judgment in defendants' favor is dictum, is unrelated to the untimeliness of defendants' initial motion, and does not provide a basis for taking an appeal (see Edge Mgt. Consulting v Irmas, 306 AD2d 69 [2003]; Schuster v Schweitzer, 203 AD2d 552 [1994]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090113

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