Johs Avallone & Aviles, LLP, Islandia, NY (John B.
Saville of counsel), for third-party defendant-appellant.
Cascone & Kluepfel, LLP, Garden City, NY (Howard B.
Altman and James K. O'Sullivan of counsel), for
defendants third-party plaintiffs-respondents.
REINALDO E. RIVERA, J.P., L. PRISCILLA HALL, SHERI S. ROMAN,
VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
from an order of the Supreme Court, Suffolk County (Ralph T.
Gazzillo, J.), dated November 14, 2014. The order, insofar as
appealed from, granted that branch of the motion of the
defendants third-party plaintiffs which was for leave to
renew their opposition to a prior motion of the third-party
that the order is affirmed insofar as appealed from, with
2005, the injured plaintiff, who was employed by the
third-party defendant, Communication Technology Services, LLC
(hereinafter CTS), sustained injuries while performing
renovation work at a Target store. CTS had been hired by
Bailiwick Data Systems, Inc. (hereinafter Bailiwick Data), to
perform the work. The injured plaintiff, and his wife suing
derivatively, commenced this action to recover damages for
personal injuries against, among others, Target Corporation
and Target Stores, Inc. (hereinafter together the Target
defendants), Bailiwick Enterprises, LLC, and Bailiwick, LLC
(hereinafter together the other Bailiwick defendants),
Bailiwick Data, and Westbury Holding Company (hereinafter
Westbury), the owner of the premises. The complaint asserted
causes of action alleging common-law negligence and
violations of Labor Law §§ 200, 240(1), and 241(6).
Subsequently, the Target defendants, Westbury, and Bailiwick
Data (hereinafter collectively the third-party plaintiffs)
commenced a third-party action against CTS, alleging, among
other things, that Bailiwick Data was entitled to contractual
previous motion practice, by order dated September 29, 2011,
the Supreme Court directed the dismissal of all causes of
action in the complaint except the cause of action alleging a
violation of Labor Law § 240(1), and awarded the
third-party plaintiffs summary judgment on their third-party
contractual indemnification cause of action insofar as
asserted against CTS by Bailiwick Data. Subsequently, in an
order made upon reargument dated March 24, 2012, the court
directed the dismissal of the Labor Law § 240(1) cause
of action, and in light of that determination, awarded CTS
summary judgment dismissing the third-party contractual
indemnification cause of action as academic.
appeal by the plaintiffs, this Court reversed the order dated
March 24, 2012, insofar as appealed from and, upon
reargument, adhered to the determinations in the Supreme
Court's order dated September 29, 2011, denying those
branches of the motions of CTS, the third-party plaintiffs,
and the other Bailiwick defendants which were for summary
judgment dismissing the Labor Law § 240(1) cause of
action (see Cioffi v Target Corp., 114 A.D.3d 897).
Based on this Court's decision and order, the third-party
plaintiffs moved pursuant to CPLR 2221 for leave to renew or
reargue their opposition to CTS's motion for leave to
reargue the original motion and cross motion with respect to
the third-party cause of action for contractual
indemnification. They contended that this Court's
reinstatement of the plaintiffs' Labor Law § 240(1)
cause of action against Bailiwick Data would change the
Supreme Court's prior determination that the contractual
indemnification claim against CTS was academic. In an order
dated November 14, 2014, the Supreme Court granted that
branch of the third-party plaintiffs' motion which was
for leave to renew their opposition to CTS's reargument
motion. Upon renewal, the court, in effect, vacated its
determination in the order dated March 24, 2012, with respect
to the third-party contractual indemnification cause of
action against CTS, and thereupon adhered to its
determination in the order dated September 29, 2011, awarding
the third-party plaintiffs summary judgment on their
third-party contractual indemnification cause of action
insofar as asserted against CTS by Bailiwick Data. CTS
appeals from the order dated November 14, 2014.
motion for leave to renew must be "based upon new facts
not offered on the prior motion that would change the prior
determination or shall demonstrate that there has been a
change in the law that would change the prior determination,
" and the motion papers must contain a "reasonable
justification for the failure to present such facts on the
prior motion" (CPLR 2221[e], ; see Valera v
Clark,134 A.D.3d 925, 926; Friedman, Harfenist,
Langer & Kraut v Rosenthal,79 A.D.3d 798, 800).
Here, the third-party plaintiffs' motion met the
statutory requirements for leave to renew pursuant to CPLR
2221(e) (see Ezzard v One E. Riv. Place Realty Co.,
LLC,137 A.D.3d 648, 649; Ramos v City of New
York,61 A.D.3d 51, 54-55; Koscinski v St.
Joseph's Med. Ctr.,47 A.D.3d 685, 685-686; cf.
Dauria v Castlepoint Ins. Co.,120 A.D.3d 1016, 1018).
Contrary to CTS's contention, the third-party plaintiffs
were not precluded from seeking renewal because they did not
appeal from the order dated ...