Bray v. Gluck

• Decision Date: 06 November 1997
• Citation: 235 A.D.2d 72,663 N.Y.S.2d 725
• Parties: , 1997 N.Y. Slip Op. 9168 Nadine BRAY et al., Respondents, v. David C. GLUCK et al., Appellants, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

Page 725

663 N.Y.S.2d 725

235 A.D.2d 72, 1997 N.Y. Slip Op. 9168

Nadine BRAY et al., Respondents, v. David C. GLUCK et al., Appellants, et al., Defendant.

Supreme Court, Appellate Division,

Third Department.

Nov. 6, 1997.

Francis J. Roche, Hudson, for appellants.

Allen C. Miller Jr., Hudson (David Seth Michaels, Spencertown, of counsel), for respondents.

Before MIKOLL, J.P., and CREW, WHITE, YESAWICH and SPAIN, JJ.

WHITE, Justice.

Appeal from an order of the Supreme Court (Cobb, J.), entered March 18, 1997 in Columbia County, which, upon reargument, denied a motion by defendants David C. Gluck and Joanne Gluck for summary judgment dismissing the complaint against them.

At the time plaintiff Nadine Bray was injured as the result of a fall on a sidewalk in front of property owned by defendants David C. Gluck and Joanne Gluck (hereinafter collectively referred to as defendants) in the City of Hudson, Columbia County, section C32-3 of the City of Hudson Charter obligated property owners to keep the sidewalks abutting their lands in good repair and transferred liability from the City to the landowners for injuries caused by defective sidewalks. When plaintiffs commenced this negligence action, they did not allege that defendants violated this provision, relying on Rooney v. City of Long Beach, 42 A.D.2d 34, 345 N.Y.S.2d 66, appeal dismissed 33 N.Y.2d 897, 352 N.Y.S.2d 449, 307 N.E.2d 564, which held that a similar charter provision was invalidated by Municipal Home Rule Law § 11(1)(j). Subsequently, on March 28, 1995, defendants entered Supreme Court's order granting them summary judgment dismissing plaintiffs' complaint. Plaintiffs appealed, but before the appeal was argued in September 1996, the Court of Appeals on May 2, 1996 held that Municipal Home Rule Law § 11(1)(j) does not prohibit local laws like section C32-3 of the City of Hudson Charter (see, Hausser v. Giunta, 88 N.Y.2d 449, 454, 646 N.Y.S.2d 490, 669 N.E.2d 470). Despite this seeming significant change in the governing case law, plaintiffs did not seek reargument before Supreme Court or raise Hausser v. Giunta (supra ) before this court. Instead, it was not until after we affirmed Supreme Court's order (232 A.D.2d 942, 648 N.Y.S.2d 832, lv. dismissed 89 N.Y.2d 1023, 658 N.Y.S.2d 239, 680 N.E.2d 612) that they attempted to bring Hausser to our attention by seeking reargument and leave to appeal to the Court of Appeals. Also, while this application was pending before us, plaintiffs sought reargument before Supreme Court which, finding there had been a significant change in the law it applied, granted reargument, vacated its prior order and reinstated plaintiffs' action against defendants, prompting this appeal. ¹

The initial issue we confront is whether Supreme Court abused its discretion in granting reargument. Generally, a motion for reargument must be brought within the time to appeal (see, Matter of Barnes [Council 82, AFSCME], 235 A.D.2d 826, 652 N.Y.S.2d 383). Plaintiffs' failure to comply with this rule is not necessarily fatal since there are exceptions. For instance, insofar as interlocutory orders are concerned, the statutory time limits are not controlling (see, Liss v. Trans Auto Sys., 68 N.Y.2d 15, 20, 505 N.Y.S.2d 831, 496 N.E.2d 851; Matter of Burns, 228 A.D.2d 674, 675, 646 N.Y.S.2d 18). Plaintiffs do not fall within this exception since Supreme Court's order granting defendants summary judgment was a final order, as it disposed of all the causes of action between the parties and left nothing for further judicial action (see, Burke v. Crosson, 85 N.Y.2d 10, 15, 623 N.Y.S.2d 524, 647 N.E.2d 736).

Another exception is that a motion for reargument may be brought after the time to appeal has expired if a notice of appeal has been timely filed and the motion is brought prior to the submission of the appeal or at the latest before the appeal is determined, because at that point Supreme Court no longer has discretion to reconsider...