Mosca v. Lalezarian Props., LLC

Summary

The Appellate Division, Second Department, reversed an order that granted Con-Kel Landscaping, Inc. leave to reargue its summary judgment motion and, upon reargument, dismissed the claims against it. The court held that Con-Kel improperly raised for the first time on reargument an argument concerning the plaintiff's preclusion from testifying at trial.

Holdings

1. A motion for leave to reargue may not be used to present a new theory or an argument different from those originally asserted. Because Con-Kel did not raise the plaintiff's alleged preclusion from testifying in its original summary judgment motion, it improperly raised that argument for the first time on reargument.

Questions Presented

1. Whether Con-Kel could obtain leave to reargue its prior summary judgment motion by relying on the plaintiff's alleged preclusion from testifying when that argument was not raised in the original motion.
2. Whether the Supreme Court properly granted reargument and summary judgment based on an argument first presented in the motion for leave to reargue.

Disposition

reversed