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Neill v Oakgrove Constr. It is alleged that defendant’s daughter, Kit Yip, was the liaison for her mother since the latter did not speak English. Sepe further attests that several days after this telephone conversation, she received a letter signed by defendant Wun Ying Fung, confirming the telephone conversation. In this regard, it is not inappropriate to refer, by way of analogy, to the balancing of interests which a court must routinely undertake in discovery matters, where one party’s need for discovery is weighed against the special burden, if any, which it may impose on the other party see e. A default judgment in the third-party action was entered against the third-party defendants on December 12, For more information, see Fancy Anywhere.

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It is well established that a motion for leave to reargue is addressed to the sound discretion of the court and affords the moving party an opportunity to show that the court sun or misapprehended the facts or the law or for some other reason mistakenly arrived at its earlier decision see CPLR [d][2]; Doirio v City of New York, AD2d [2nd Dept ].

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In the present application, movant maintains that in denying her prior motion for summary judgment, the Court overlooked the basic principal that a defaulting party is precluded from testifying at the time of trial on the issue of liability and, therefore, plaintiff will be unable to prove notice of the alleged defective condition of the carpet.

Plaintiff commenced this action to recover damages for personal injuries allegedly sustained when she slipped and fell on defective carpeting covering the interior stairs of certain residential premises owned by defendant and located at Wirt Avenue, Staten Island, New York. Instead, defendant argued that Ms. Reset Password Enter your email address to reset your password.

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Wyn opposing reargument, plaintiff maintains that defendant has impermissibly interjected a new issue that was never advanced in support of summary judgment, i.

At the time, plaintiff, her mother and stepfather third-party defendants Carol Ann Sepe and Michael Sepe were tenants in the subject premises. Sepe as the owner’s representative [FN1]about the “torn, ripped and bunched up” carpeting on the stairs and asked that it be replaced.

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Sepe was allegedly informed at that time that if she paid her rent yng time for one or two years, the carpet would be replaced. For more information, see Fancy Anywhere. Sepe’s ability to testify at ylng time of trial or simply failed to address [this] issue” was not tendered on the original motion and, therefore, is not properly raised on reargument see Pryor v Commonwealth Land Title Ins.

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Share This thing was successfully sent. It is alleged that defendant’s daughter, Kit Yip, was the liaison for her mother since the latter did not speak English.

In aun regard, plaintiff points to the corroborating deposition testimony of defendant’s own witness, Kit Yip, who stated that on two occasions prior to the accident, Carol Ann Sepe had contacted her by telephone to complain about the carpet and to request that it be replaced because it was “old”. In any event, were the issue properly before it, this Court does not perceive that the principles which bar a yinf party from contesting the merits of an action in which he or she is a party should have any application to another cause of action, e.

Sepe attests that four months prior to the accident in question, she complained in a telephone conversation with the landlord’s daughter, Kit Yip who was known to Ms. Sepe’s affidavit on the sole ground that “[p]laintiff cannot create an issue of fact with a statement which relies on a hearsay document not even produced. In this regard, it is not inappropriate to refer, by way of analogy, to the balancing of interests which a court must routinely undertake in discovery matters, where one party’s need for discovery is weighed against the special burden, if any, which it may impose on the other party see e.

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In her reply papers on the original motion, defendant objected to the admissibility of Ms. This opinion is uncorrected and will not be published in the printed Official Reports. Join with Facebook Google Twitter. You will earn Fancy credits when they complete a purchase.

To get the best possible experience using Fancy we recommend that you upgrade to the latest version of Internet Explorer or other web browser. On this wunn, the moving defendant further contends that plaintiff’s only evidence in opposition to her prior motion, i. Sepe’s affidavit should be disregarded “as it refers to a document which is not only hearsay, but not even attached to the affirmation in opposition. Join Fancy Fancy is the place to discover and buy amazing things curated by our global community.

Log In Yying in selling? In the instant matter, movant has failed to convince this Court that it misapprehended the law in denying the prior motion.

More social networks New to Fancy? It is not to be used, however, as the means by which an unsuccessful party is permitted to argue again the same issues previously decided see Pro Brokerage v Home Ins. Reset Password Back to Login. Moreover, it is incontrovertible that defendant’s claim that the Court “either misapplied the law regarding Ms.