Farrell v. Okeic

Mar 21, 2003
Versions:303 A.D.2d 957
755 N.Y.S.2d 677
2003 N.Y. App. Div. LEXIS 2866

—Appeal from an order of Supreme Court, Onondaga County (Nicholson, J.), entered September 18, 2002, which denied defendant’s motion for summary judgment dismissing reinstated claims.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed with costs.

Memorandum: Plaintiff commenced this action to recover damages for injuries he sustained when he fell through the loft of a barn owned by defendant. On a prior appeal, we modified an order granting defendant’s cross motion for summary judgment seeking dismissal of the complaint by denying that part of the cross motion seeking dismissal of the common-law negligence and Labor Law § 200 claims and reinstating those claims (Farrell v Okeic, 266 AD2d 892 [1999]). Supreme Court properly denied defendant’s motion for summary judgment dismissing the reinstated claims. “Initially, we note that successive summary judgment motions ‘should be discouraged in the absence of a showing of newly discovered evidence or other sufficient cause’” (Town of Wilson v Town of New fane, 192 AD2d 1095, 1095 [1993]; see Marine Midland Bank v Fisher, 85 AD2d 905, 906 [1981]). Defendant failed to show that the evidence submitted in support of the motion was newly discovered or that it could not have been submitted on the prior cross motion (see Ashford v Rochester Hosp. Serv. Corp., 214 AD2d 954, 955 [1995]). In any event, defendant failed to tender sufficient evidence to demonstrate the absence of material issues of fact whether plaintiff fell through the area of the loft floor that plaintiff’s employer was hired to repair and whether the deteriorated condition of the loft floor was open and obvious (see Farrell, 266 AD2d at 893; see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Present— Green, J.P., Pine, Hurlbutt and Lawton, JJ.