ADDITIONAL CASES Gwendolyn Oliphant, Third-party Plaintiff v. Schmergel Enterprises Corp., Third-party Defendants The following papers were read on this motion Order to Show Cause /Affirmation/Supporting Exhibits by Defendant/Third Party Plaintiff Gwendolyn Oliphant 1 Notice of Cross Motion / Affirmation/ Supporting Exhibits by Defendant Town of North Hempstead 2 Affirmation in Opposition/Supporting Exhibits by Plaintiff 3 DECISION AND ORDER The Defendant/Third Party Plaintiff Gwendolyn Oliphant (“Oliphant”) moves the Court by Order to Show Cause for an Order, pursuant to CPLR 2221[e] which, inter alia, seeks leave of the Court to renew her prior motion for summary judgment, and upon such renewal, granting Oliphant’s motion for summary judgment dismissing the Complaint, along with cross claims against her (motion sequence 17) The Defendant Town of North Hempstead (“Town”) moves the Court by Notice of Cross-Motion for summary judgment dismissing the Complaint and all cross asserted against it by applying “the law of the case” as set forth in the February 1, 2023, order of the Appellate Division, 2nd Department with respect to this matter (motion sequence 018). The action at bar arises from an incident that occurred on or about June 24, 2010, in front of premises known at 9 Cumberland Avenue, Great Neck, New York 11020. The verified complaint provides that a tree limb, or a portion thereof, crashed through the decedent Plaintiff’s windshield and pierced his right leg as he sat in his car in front of 9 Cumberland Avenue, Great Neck, N.Y., during an intense microburst storm that toppled telephone polls in the area. After the plaintiff’s decedent commenced his action against the Defendants, Oliphant filed a third party action with the Court against the third party defendant, Schmergel Enterprises (“Schmergel”). The prior Court denied Schmergel’s motion for summary judgment dismissing the third party complaint, and Schmergel appealed. The Appellate Division determined that Schmergel “established its prima facie entitlement to judgment as a matter of law dismissing the third-party complaint by submitting the transcripts of the decedent’s and Oliphant’s deposition testimony, demonstrating that neither the decedent nor Oliphant could identify from whose property the branch which injured the decedent had originated. Thus, any finding that Schmergel’s negligence, if any, in maintaining the trees on its property proximately caused the decedent’s injuries would be based on impermissible speculation.” (Rankin v. Town of N. Hempstead, 213 AD3d 711, 712 [2d Dept 2023]) A motion for leave to renew must be based upon new facts not offered on the prior motion that would change the prior determination or demonstrate that there has been a change in the law that would change the prior determination. (CPLR §2221[e][2]). The motion for leave to renew shall contain reasonable justification for the failure to present such facts on the prior motion. (CPLR §2221[e][3]). This Court well recognizes that the Appellate Division decision in this matter presents a unique set of circumstances. Customarily, an appellate ruling would tend to affect one party. However, herein, the Appellate Division has established that a dispositive “fact” could only be established and based upon speculation. In that regard, no duration of time could, absent newly discovered facts, serve to cure that finding and transform the speculation into something different. As a result, the determination must apply to the remaining originally non-moving parties. The determination of the Appellate Division that the branch that struck the Plaintiff was not identifiable must be considered the law of the case. Under the law of the case doctrine, a party may not re-litigate an issue that has already been resolved in a particular proceeding. (Haibi v. Haibi, 171 AD2d 842 [2nd Dept 1991]; Baron v. Baron, 128 AD2d 821 [2nd Dept 1987]; DK v. MTK, 52 Misc3d 865 [Richmond County Sup Ct. 2016]). Based upon the foregoing, the determination of the Appellate Division that Plaintiff failed to identify the source of the tree branch must be considered controlling, and the trial Court may not speculate as to the responsibility of the moving Defendants. Accordingly, the Defendants’ motions for leave to renew are GRANTED, and with the granting of the motions to renew, and in applying the decision of the Appellate Division, the Complaint is hereby DISMISSED, along with all cross claims filed against the moving Defendants. All other requested relief, not specifically addressed herein, is hereby DENIED. This constitutes the Decision and Order of the Court. Dated: August 23, 2023
