                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: December 3, 2015                    521052
________________________________

DAVID WASSON et al.,
                    Respondents,
      v                                      MEMORANDUM AND ORDER

RUTH BOND et al.,
                    Appellants.
________________________________


Calendar Date:   October 19, 2015

Before:   McCarthy, J.P., Rose, Devine and Clark, JJ.

                              __________


      Kernan & Kernan, PC, Utica (Gregory A. Hamlin of counsel),
for appellants.

      Cohen & Cohen, LLP, Utica (Daniel S. Cohen of counsel), for
respondents.

                              __________


Devine, J.

      Appeal from a judgment of the Supreme Court (Burns, J.),
entered July 24, 2014 in Otsego County, which, upon reargument,
among other things, granted plaintiffs' motion for partial
summary judgment.

      Plaintiffs and defendant Ruth Bond own adjacent parcels of
real property in the Town of Otsego, Otsego County and, over the
years, disputes related to the properties have repeatedly
required judicial intervention to resolve (see Wasson v Bond, 97
AD3d 1093 [2012]; Wasson v Bond, 80 AD3d 1114 [2011]).
Plaintiffs commenced this action in 2011 and alleged, as is
relevant here, that defendants trespassed upon their property by
installing a sewer line under it. Issue was joined and, in 2013,
plaintiffs moved for partial summary judgment on the sewer line
                              -2-                521052

claim. Defendants responded with the affidavit of defendant
Wesley Dousharm, who installed the sewer line in 2002 and stated
that the then-owner of plaintiffs' property was aware of the
installation and never objected to it. Defendants further
asserted that the original sewer line was abandoned in 2013 when
a new sewer line was installed that does not traverse plaintiffs'
property. Supreme Court denied the motion, finding that
questions of fact existed as to whether the prior owner
acquiesced to the presence of the original sewer line.

      Plaintiffs thereafter moved for reargument and/or renewal,
taking the position that the original sewer line "was no longer
an issue" given the construction of the new sewer line and
arguing that any acquiescence to the original line did not extend
to the installation of the new one.   Plaintiffs further claimed
that, contrary to the assertion of defendants, the new sewer line
traversed their property. Supreme Court granted reargument,
finding that the claim of acquiescence was irrelevant to the
installation of the new sewer line and that the new line crossed
plaintiffs' property, and upon reargument, granted plaintiffs'
motion for partial summary judgment. Defendants subsequently
moved, unsuccessfully, for reargument. They now appeal from the
judgment entered upon the order granting, after reargument,
summary judgment to plaintiffs, the enforcement of which was
stayed by Supreme Court pending appeal.

      Defendants do not directly challenge the grant of
reargument and argue that Supreme Court erred in granting, upon
reargument, plaintiffs' motion for partial summary judgment.
Nevertheless, the grant of reargument was "so at variance with
the intent of [CPLR 2221] as we conceive it to be, that we feel
justified in" reversing the appealed-from judgment on that issue
(Matter of Industrial Commr. v Underwood Elliott Fisher Co., 245
App Div 347, 347 [1901]).

      The complaint asserts a trespass claim with regard to the
original sewer line, and plaintiffs moved for partial summary
judgment with regard to that claim. During the pendency of the
summary judgment motion, defendants abandoned the original sewer
line and installed a new one. Supreme Court denied plaintiffs'
motion on the ground that questions of fact existed as to the
                              -3-                521052

viability of the actual claim involving the original sewer line,
prompting plaintiffs to move for renewal and/or reargument. "[A]
motion to reargue is not available to advance a new theory of
liability, or to present arguments different from those
originally asserted" (Blair v Allstate Indem. Co., 124 AD3d 1224,
1224-1225 [2015]; see DeSoignies v Cornasesk House Tenants'
Corp., 21 AD3d 715, 718 [2005]), but plaintiffs did just that in
their motion for reargument, arguing that the installation of the
original "[s]ewer [l]ine was no longer an issue" and that the
alleged trespass caused by the new sewer line justified a grant
of summary judgment. Supreme Court accordingly abused its
discretion in granting reargument based upon the presence of the
new sewer line, a claim that was not raised by plaintiffs in
either their original motion for summary judgment or their
complaint (see DeSoignies v Cornasesk House Tenants' Corp., 21
AD3d at 718; compare Fox v Schrader Corp., 36 AD2d 591, 591
[1971]).

      Plaintiffs also moved for renewal as well as reargument,
pointing to "new facts not offered on the prior motion that would
[purportedly] change the prior determination" (CPLR 2221 [e] [2];
see Hyman v Schwartz, 127 AD3d 1281, 1285 [2015]). The specific
fact noted by plaintiffs was that the prior owner of their
property was dead, prompting them to argue that any testimony by
defendants regarding his acquiescence to the installation of the
original sewer pipe would be barred by the Dead Man's Statute
(see CPLR 4519). This assertion overlooks the rule that evidence
excludable at trial under the Dead Man's Statute may nevertheless
be used to defeat a motion for summary judgment (see Estate of
Kingston v Kingston Farms Partnership, 130 AD3d 1464, 1466
[2015]; Estate of Goth v Tremble, 59 AD3d 839, 841 [2009]).
Supreme Court properly noted, in any event, that proof regarding
the acquiescence issue was only relevant to the question of
whether the installation of the original sewer line constituted a
trespass, a question that plaintiffs viewed as moot given the
installation of the new sewer line. It is apparent that, under
these circumstances, Supreme Court would not have changed its
determination on the underlying summary judgment motion had it
known of the prior owner's death (see CPLR 2221 [e] [2]). In
light of the foregoing, we do not address whether questions of
fact exist with regard to the claim that was actually asserted by
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plaintiffs in their complaint and raised in their motion for
partial summary judgment, namely, whether the placement of the
original sewer line constituted a trespass.

     McCarthy, J.P., Rose and Clark, JJ., concur.



      ORDERED that the judgment is reversed, on the law, with
costs, and plaintiffs' motion for reargument and/or renewal
denied.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
