Judges

Attorneys and Parties

Brief Summary

Background

In January 2016, plaintiff Carmen Mosca, a security guard, allegedly slipped on black ice in an underground parking garage where she worked. She sued, among others, Con-Kel Landscaping, Inc., the snow removal contractor for the building. After repeated discovery noncompliance, the Supreme Court issued a March 25, 2019 order directing the plaintiff to provide outstanding discovery and stating that, if she failed to comply, she would be precluded from offering testimony at trial. In August 2019, Con-Kel moved for summary judgment dismissing the amended complaint, arguing that it lacked notice of the condition and owed no duty of care to the plaintiff. The plaintiff opposed. By order dated March 13, 2020, the court denied that branch of the motion without prejudice to renew after discovery was completed. In November 2020, instead of moving to renew, Con-Kel moved for leave to reargue, asserting that the court had overlooked the effect of the plaintiff's trial preclusion and that she therefore could not prove liability.

Lower Court Decision

The Supreme Court, Queens County, granted Con-Kel leave to reargue its prior summary judgment motion and, upon reargument, vacated so much of the March 13, 2020 order as had denied summary judgment to Con-Kel. The court then granted summary judgment dismissing the amended complaint against Con-Kel, reasoning that the plaintiff's inability to testify at trial meant she could not make out a prima facie case on liability.

Appellate Division Reversal

The Appellate Division, Second Department, reversed insofar as appealed from, with costs, and denied Con-Kel's motion for leave to reargue. The appellate court held that Con-Kel had not argued in its original summary judgment motion that the plaintiff's preclusion from testifying required dismissal. Because that contention was raised for the first time on the motion to reargue, it was not a proper basis for reargument.

Legal Significance

This decision reinforces the limited purpose of a motion to reargue in New York practice. Reargument is confined to matters the court allegedly overlooked or misapprehended on the original motion; it cannot be used to introduce a new dispositive theory or a different argument that was available earlier. The ruling is especially important in summary judgment practice, where parties must present all grounds for relief in the original motion or seek renewal on an appropriate record rather than recast the motion as one for reargument.