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Newkirk-Briggs v. County of Putnam

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


March 17, 2009

DOLLYANN NEWKIRK-BRIGGS, ET AL., RESPONDENTS,
v.
COUNTY OF PUTNAM, ET AL., APPELLANTS, ET AL., DEFENDANT.

In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Putnam County (O'Rourke, J.), dated March 17, 2008, which granted the plaintiffs' motion for leave to reargue their opposition to that branch of the defendants' motion which was for summary judgment dismissing the complaint insofar as asserted against the defendants County of Putnam, Putnam County Sheriff Department, and Sheriff of Putnam, which was determined in an order of the same court dated January 3, 2008, and, upon reargument, vacated the order dated January 3, 2008, and, in effect, denied that branch of the defendants' motion which was for summary judgment dismissing the complaint.

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.

REINALDO E. RIVERA, J.P., JOHN M. LEVENTHAL, ARIEL E. BELEN and CHERYL E. CHAMBERS, JJ.

(Index No. 2619/06)

DECISION & ORDER

ORDERED that the order is affirmed, with costs.

The Supreme Court properly granted the plaintiffs' motion for leave to reargue inasmuch as the plaintiffs based their motion upon matters of fact and law allegedly overlooked by the court in determining the prior motion (see CPLR 2221[d]). Contrary to the defendants' assertion, the plaintiffs did not raise an issue not previously advanced.

Upon reargument, the Supreme Court properly vacated its original determination and, in effect, denied that branch of the defendants' motion which was for summary judgment dismissing the complaint since triable issues of fact exist as to whether the defendant John Alfano drove his vehicle in reckless disregard for the safety of others, thereby violating the standard of care imposed by Vehicle and Traffic Law § 1104(e) (see Campbell v City of Elmira, 84 NY2d 505; Rouse v Dahlem, 228 AD2d 777).

RIVERA, J.P., LEVENTHAL, BELEN and CHAMBERS, JJ., concur.

20090317

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