ADDITIONAL CASES This Decision/Order Relates To: Welch v. 260-261 Madison Ave. LLC et al. -and- Admiral Indemnity Co. v. 260-261 Madison Ave. LLC et al. -and- Pacific Indemnity Co. v. Penguin Air Cond. Corp. et al -and- Pyle v. 260-261 Madison Ave. LLC. et al. -and- 260-261 Mad. Ave LLC. v. Penguin Air Cond. Corp. et al.; 162167/15; 151809/18; 154601/18; 157898/17 DECISION/ORDER These coordinated actions arise from a crane accident which occurred on May 31, 2015 at 261 Madison Avenue, New York, New York, when an HVAC chiller unit fell while being hoisted by a crane to the 30th floor of the subject premises. It’s alleged that one of the straps on a sling used to secure the HVAC unit snapped while it was being hoisted which caused property damage and personal injuries. In each of these motions, third-party defendants/second third-party defendants Marine & Industrial Supply Company, Inc. (“Marine”) moves for an order pursuant to CPLR 2221 for leave to reargue its motions for an order dismissing the Complaint, Third-Party Complaint, Second Third Party Complaint and all crossclaims against it for lack of personal jurisdiction. In an order dated October 2, 2023, the court denied Marine’s motions to dismiss. In motion sequence 13, Welch v. 260-261 Madison Ave. LLC et al., and in motion sequence 012, Admiral Indemnity Co. v. 260-261 Madison Ave. LLC et al, defendants/third-party plaintiffs Skylift Contractor Corp. (“Skylift”) oppose the motion, as does defendants/second third-party plaintiffs 260-261 Madison Avenue LLC and sometimes also ASRR Construction LLC (collectively “260-261 Madison”). In motion sequence 06, Pacific Indemnity Co. v. Penguin Air Cond. Corp. et al, only defendants/third-party plaintiffs Skylift Contractor Corp. (“Skylift”) oppose the motion. In motion sequence 09, Pyle v. 260-261 Madison Ave. LLC. et al., defendants/third-party plaintiffs Skylift Contractor Corp. (“Skylift”) oppose the motion, as does defendants/second third-party plaintiffs 260-261 Madison Avenue LLC and sometimes also ASRR Construction LLC (collectively “260-261 Madison”). In motion sequence 12, 260-261 Mad. Ave LLC. v. Penguin Air Cond. Corp. et al., defendant/third-party plaintiff Hanes and Defendants/third-party plaintiffs Skylift Contractor Corp. (“Skylift”) oppose the motion. The motions are hereby consolidated for the court’s consideration and disposition in this single decision/order. The relevant facts are as follows. 260-261 Madison owned the subject premises on the date of the accident and the crane was being operated by Skylift at that time. Marine manufactured the sling which allegedly snapped and Paul’s Wire Rope & Sling (“Pauls”) was the retailer who sold the sling. Marine’s arguments in the above referenced motions are essentially the same and mirror the arguments in its prior motions that Marine is not subject to long arm jurisdiction under CPLR 302. Marine contends that the Court erred when it found that Marine derived substantial revenue from interstate commerce (which Marine does not dispute), that Marine should have expected the act in issue, the manufacturing of a sling in Alabama, and alleged sale of the sling to Paul’s Wire Rope & Sling in Connecticut, to have consequences years later in New York and the “Court appears to have based its Decision upon Marine’s contacts with New Jersey and Pennsylvania, rather than the alleged connection between the manufacturing of the sling in Alabama and sale of the sling to Connecticut with New York”. In opposition to the Marine motions herein, Skylift and 260-261 Madison argue that Marine failed to demonstrate that this Court overlooked or misapprehended the applicable facts or law on the issue of personal/long arm jurisdiction and that the Court correctly found it has jurisdiction over Marine under CPLR 302(a)(3)(i) (“regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state”) and also under CPLR 302(a)(3)(ii) (“expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce.”). Hanes argues, in opposition, that Marine’s motion to reargue simply reiterates their arguments within their original motion papers that Marine is not subject to long arm jurisdiction under CPLR 302 because they could not have anticipated that their actions could have consequences in New York, and that subjecting Marine to New York’s personal jurisdiction violates their Due Process. Hanes contends that not only were these the same factual and legal arguments made within Marine’s original motion, but that the Court succinctly addressed these arguments in the October 2, 2023 Order. Discussion A motion to reargue is addressed to the court’s discretion, and permission to reargue will only be granted if the court believes some error has been made (see CPLR §2221[d][2]). In order to succeed on a motion for reargument, the movant must demonstrate that the Court overlooked or misapprehended the law or facts when it decided the original motion (Foley v. Roche, 68 AD2d 558 [1st Dept 1979]). A motion to reargue is not designed to provide an unsuccessful party with another opportunity to re-litigate the same issues previously decided against him or her (Pro Brokerage, Inc. v. Home Ins. Co., 99 AD2d 971 [1st Dept 1984]). Nor does a motion to reargue permit a litigant to present new arguments not previously advanced on the prior motion (Amato v. Lord & Taylor, Inc., 10 AD3d 374 [2d Dept 2004]; see also DeSoignies v. Cornasesk House Tenants’ Corp., 21 A.D.3d 715 [1st Dept 2005]). First, Marine does not dispute the Court’s finding in its decision/order dated October 2, 2023 that it derived substantial revenue from interstate commerce under CPLR 302(a)(3)(i). The court rejects Marine’s assertion that the prior order was based “upon Marine’s contacts with New Jersey and Pennsylvania, rather than the alleged connection between the manufacturing of the sling in Alabama and sale of the sling to Connecticut with New York”. In the October 2, 2023 decision, the Court held “it is conceivable that Marine’s products could have ended up in New York as a result of sales in neighboring states such as New Jersey, Pennsylvania and the New England states. Here, Marine has purposefully availed itself of the privilege of conducting activities within New York because it has placed its products into the stream of commerce, and it should have reasonably foreseen and expected that those products will be delivered into New York.” The geographically close location of both New Jersey and Pennsylvania make it conceivable that Marine’s products could find their way into New York. Marine’s next argues that the court erred when it found that the sale of the sling to Paul’s in Connecticut could subsequently have consequences in New York and that subjecting Marine to personal jurisdiction violates due process. Here, Marine has failed to establish that the court overlooked any facts or law in the decision. Instead, Marine rehashes its prior arguments and otherwise merely disagrees with this court’s decision which is not proper grounds for a motion to reargue. Accordingly, Marine’s motions are denied in their entirety. Conclusion In accordance herewith, it is hereby ORDERED that the following motions are denied in their entirety: [1] Admiral Indem. Co. v. 260-261 Madison LLC, index number 162167/2015, motion sequence 012; [2] Welch v. 260-261 Madison LLC, index number 162502/2015, motion sequence 013; [3] 260-261 Madison LLC v. Penguin Air Conditioning Corp., index number 157898/2017, motion sequence 012; [4] Pacific Indem. Co. v. Penguin Air Conditioning Corp., index number 151809/2018, motion sequence 06; and [5] Pyle v. 260-261 Madison LLC, index number 154601/2018, motion sequence 09. Any requested relief not expressly addressed herein has nonetheless been considered and is hereby expressly denied and this constitutes the Decision and Order of the Court. So Ordered: Dated: January 30, 2024
