Dinallo v. Dal Electric
Decision Date | 03 March 2009 |
Docket Number | 2008-00129. |
Parties | STEPHEN DINALLO et al., Appellants, v. DAL ELECTRIC et al., Defendants, and LEHR CONSTRUCTION CORP., Respondent. (And a Third-Party Action.) |
Court | New York Supreme Court — Appellate Division |
Ordered that the order is affirmed, with costs.
Pursuant to an order dated September 18, 2007, this court dismissed the plaintiffs' claims based upon Labor Law § 200 and common-law negligence against the defendant DAL Electric and the defendant Thyssenkrupp Elevator (see Dinallo v DAL Elec., 43 AD3d 981 [2007]). On October 11, 2007, the defendant Lehr Construction Corp. (hereinafter Lehr) moved for leave to renew its motion for summary judgment dismissing the complaint insofar as asserted against it based upon a change in decisional law. In opposition, the plaintiffs contended, among other things, that Lehr's motion was untimely.
A motion for leave to renew is the appropriate vehicle for seeking relief from a prior order based on a change in the law (see CPLR 2221 [e] [2]). CPLR 2221 (e) (2) provides that a motion for leave to renew shall be based on new facts not offered on the original motion or "shall demonstrate that there has been a change in the law that would change the prior determination." A clarification of the decisional law is a sufficient change in the law to support renewal (see CPLR 2221 [e] [2]; Roundabout Theatre Co. v Tishman Realty & Constr. Co., 302 AD2d 272 [2003]).
Absent circumstances set forth in CPLR 5015, which are inapplicable here, a motion for leave to renew based upon a change in the law must be made prior to the entry of a final judgment or before the time to appeal has expired (see Glicksman v Board of Educ./Cent. School Bd. of Comsewogue Union Free School Dist., 278 AD2d 364 [2000]). Here, since Lehr made its motion prior to trial and prior to the entry of a final judgment, the Supreme Court correctly determined that the motion for leave to renew was...
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