        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1217
CA 13-02070
PRESENT: SMITH, J.P., CENTRA, FAHEY, LINDLEY, AND WHALEN, JJ.


PEGGY J. SMITH, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

CITY OF BUFFALO, DEFENDANT-RESPONDENT.


FRANK S. FALZONE, BUFFALO (LOUIS ROSADO OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

TIMOTHY A. BALL, CORPORATION COUNSEL, BUFFALO (DAVID M. LEE OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Timothy
J. Walker, A.J.), entered January 22, 2013. The order granted the
motion of defendant for leave to reargue, and upon reargument, granted
the motion of defendant for summary judgment and dismissed the
complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: In this action seeking damages for injuries that
plaintiff allegedly sustained when she fell into an uncovered manhole,
plaintiff appeals from an order that granted defendant’s motion for
leave to reargue its prior motion for summary judgment dismissing the
complaint and, upon reargument, granted the prior motion. In seeking
reargument, defendant again asserted that it did not receive prior
written notice of the dangerous condition as required by its local
law. Contrary to plaintiff’s contention, Supreme Court properly
granted the motion for leave to reargue. The court originally denied
the prior motion on the ground that issues of fact precluded summary
judgment, and upon reargument the court determined that the motion
raised issues of law that must be decided by the court, including
whether the local law applies to this case. “A motion for leave to
reargue . . . shall be based upon matters of fact or law allegedly
overlooked or misapprehended by the court in determining the prior
motion” (CPLR 2221 [d]). Thus, a motion for leave “to reargue ‘may be
granted only upon a showing that the court overlooked or
misapprehended the facts or the law, or for some reason mistakenly
arrived at its earlier decision’ ” (Andrea v E.I. Du Pont De Nemours &
Co. [appeal No. 2], 289 AD2d 1039, 1040-1041, lv denied 97 NY2d 609).
Here, contrary to plaintiff’s contention, the court properly granted
leave to reargue after concluding that it had misapprehended the law,
because the issue whether the prior written notice statute applied was
                                 -2-                          1217
                                                         CA 13-02070

one of law for the court to decide, rather than one of fact for the
jury (see generally Cayuga Indian Nation of N.Y. v Gould, 14 NY3d 614,
635, cert denied ___ US ___, 131 S Ct 353; Matter of Held v New York
State Workers’ Compensation Bd., 58 AD3d 971, 972-973).




Entered:   November 21, 2014                   Frances E. Cafarell
                                               Clerk of the Court
