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

896
CA 11-01725
PRESENT: SCUDDER, P.J., FAHEY, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


JASON PALMER AND MANDY PALMER,
PLAINTIFFS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

COUNTY OF ERIE, DEFENDANT-APPELLANT.
(APPEAL NO. 1.)


RUPP, BAASE, PFALZGRAF, CUNNINGHAM & COPPOLA LLC, BUFFALO (ERIC S.
BERNHARDT OF COUNSEL), FOR DEFENDANT-APPELLANT.

MAXWELL MURPHY, LLC, BUFFALO (ALAN D. VOOS OF COUNSEL), FOR
PLAINTIFFS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Erie County (Tracey A.
Bannister, J.), entered May 9, 2011. The order denied that part of
plaintiffs’ motion seeking leave to renew and granted that part of
plaintiffs’ motion seeking partial summary judgment on liability
pursuant to Labor Law § 240 (1).

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, plaintiffs’ motion
insofar as it seeks leave to renew is granted, that part of the
underlying motion seeking summary judgment dismissing the Labor Law §
240 (1) claim against defendant is denied, that claim is reinstated
and plaintiffs’ motion insofar as it seeks partial summary judgment on
that claim is denied.

     Memorandum: In appeal Nos. 1 and 2, defendant, County of Erie
(County), appeals from orders denying those parts of plaintiffs’
respective motions for leave to renew as unnecessary and granting
those parts of plaintiffs’ respective motions for partial summary
judgment on liability on the Labor Law § 240 (1) claims. We note at
the outset that Supreme Court (Bannister, J.) erred in determining
that plaintiffs’ motions were unnecessary to the extent that they
sought leave to renew. Supreme Court (Makowski, J.) previously had
granted those parts of the motions of the County and another defendant
for summary judgment dismissing the Labor Law § 240 (1) claims against
the County, and plaintiffs neither opposed those parts of the motions
nor took an appeal from the orders granting them. Thus, the dismissal
of those claims became the law of the case (see generally Town of
Angelica v Smith, 89 AD3d 1547, 1549-1550).

     We conclude, however, that plaintiffs met their burden of
                                 -2-                           896
                                                         CA 11-01725

establishing their entitlement to leave to renew their opposition to
the prior motions under CPLR 2221 (e) (2) based on a “change in the
law that would change the prior determination.” We further conclude
that, upon renewal, plaintiffs established that summary judgment
dismissing the claims under Labor Law § 240 (1) was not appropriate
based on the change in the law but that plaintiffs failed to establish
their entitlement to partial summary judgment on liability with
respect to those claims. Thus, the court (Bannister, J.) erred in
granting those parts of plaintiffs’ motions seeking that relief
because, in our view, there are issues of fact regarding the
occurrence of the accident that preclude partial summary judgment on
liability under section 240 (1) (see Charney v LeChase Constr., 90
AD3d 1477, 1479).




Entered:   October 5, 2012                     Frances E. Cafarell
                                               Clerk of the Court
