New York Supreme Court Appellate Division, First Department
May 9, 2013
FELIX GARCIA, PLAINTIFF-RESPONDENT,
THE NEW YORK TIMES COMPANY, ET AL., DEFENDANTS-APPELLANTS.
Garcia v New York Times Co.
Decided on May 9, 2013
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.
Gonzalez, P.J., Tom, Sweeny, Renwick, Richter, JJ.
Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered on or about January 6, 2012, which, insofar as appealed from as limited by the briefs, in this action alleging violations of the Labor Law, denied defendants' motion for an extension of time to file a summary judgment motion, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered June 6, 2012, which denied defendants' motion to renew and reargue, deemed to be an order denying a motion to reargue only, and so considered, the appeal therefrom unanimously dismissed, without costs, as taken from a non-appealable paper.
Defendants failed to offer a plausible excuse as to why they failed to secure a sworn statement from plaintiff's foreman although 2½ years had transpired since plaintiff's deposition where defendants learned of the foreman's involvement at the accident site. Accordingly, the court exercised its discretion in a provident manner in denying defendants a further extension of the time in which to file their summary judgment motion so as to permit them to obtain and incorporate such statement in the motion (see Brill v City of New York, 2 NY3d 648, 651-652 ; see also Gibbs v St. Barnabas Hosp., 16 NY3d 74, 81 ).
Furthermore, since defendants failed to show any new facts which were not previously considered by the court on the original motion, their motion to renew and reargue was actually one for reargument only, the denial of which is non-appealable (see D'Andrea v Hutchins, 69 AD3d 541 [1st Dept 2010]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MAY 9, 2013
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