Upon the foregoing papers filed herein, it is ORDERED that this motion is disposed of as follows: The motion to renew and reargue is denied.

Neiman Marcus Group (hereinafter referred to as "NMG" moves to renew and reargue the summary judgment motions in this matter which were previously decided against NMG. NMG contends that the Court mis-apprehended or mis-applied the relevant law or facts of the case and that new facts have emerged from subsequent discovery which were not previously presented on the original summary judgment motions.

At the outset, it does not appear that the Court has mis-apprehended or mis-applied the law or the facts presented to it on the prior motions for summary judgment. Accordingly, there is no basis for a re-argument of the prior motions.

With respect to the motion to renew, NMG argues that it has new evidence in the form of an affidavit from the attorney who represented NMG in its lease negotiations with Fashion Mall Partners and the deposition testimony of a non-party witness who was the plowing contractor for the mall property in years prior to the accident in question. NMG contends that these facts were not previously available because the attorney; "...is currently retired and mostly resides in the state of Florida." (Page 2 of NMG's reply affidavit to Simon Property Group and Fashion Mall Partners [hereinafter collectively referred to as "Simon"] opposition papers) and the snow plowing contractor was subponeaed three times before he finally appeared for deposition (pages 5 & 6 of NMG's affirmation in support of the instant motion). However, both of these arguments are unpersuasive.

First, the affidavit of the attorney who handled NMG's negotiations for its lease states: "...I am counsel for the Neiman Marcus Group Inc. and handle legal aspects of the corporation's real estate transactions." (Paragraph 1 to Exhibit "X" attached to NMG's moving papers on the instant motion). The attorney's affidavit speaks in the present tense and contains no indication of his lack of availability to NMG's litigation counsel. This is in stark contrast to NMG's contention (raised only in its reply affirmation) that said real estate attorney was retired and had to be located before his affidavit could be obtained. Therefore, the [*2]Court does not consider NMG's delay in providing this "new information" to be reasonable.

Similarly, the non-party snow plowing contractor was first subpoenaed in May of 2002 yet NMG failed to obtain his deposition until October of 2003. The court notes that the deposition occurred after Simon and Tony Aversa d/b/a Aversa Landscaping and Masonry (hereinafter referred to as "Aversa") had obtained summary judgments dismissing the action as against them, that Simon and Aversa were not present at the deposition of the snow plowing contractor and, consequently, had no opportunity to question the individual being deposed. Furthermore, one of the first matters NMG's attorneys addressed in the contractor's deposition is the fact that his prior deposition had been cancelled so that there had been no reason for him to appear. (Deposition transcript page 5, lines 11- 16). Accordingly, the only reason NMG failed to have the deposition in time for the prior summary judgment motions was the fact that the deposition had been cancelled and NMG did not reschedule it. Therefore, NMG's excuse for the delay in obtaining this information does not appear reasonable to the Court.

Instead, it appears that the unavailability of the "new information" at the time of the original summary judgment motions is based upon choices made by NMG in the context of the litigation. A motion to renew a prior decision is not intended as a free second bite at the apple. Since NMG could have presented the "new information" at the time of the first summary judgment motions had it exercised due diligence, the Court is not inclined to consider it now.

Moreover, even if the Court were to consider the new information, it would not alter the previous decision herein. To begin with, the portion of the building plan attached to the attorney's affidavit does not clearly show anything other than an entrance vestibule to NMG's store. It certainly offers no indication of any loading dock or entrance driveway let alone any means for the Court to determine whether they would be under the control of either NMG or Simon. Additionally, the "Construction, Operation, and Reciprocal Easement Agreement" among Fashion Mall Partners, Nordstrom, Inc. and NMG specifically states: "The Neiman Marcus Facilities include the Truck Facilities, delivery corridors and other delivery facilities on the Neiman Marcus Site serving exclusively the Neiman Marcus Building, and all improvements including Perimeter Sidewalks adjacent to the Neiman Marcus Building." (Paragraph 2.3 at page 20)(See Exhibit "G" to Simon's papers in opposition to the instant motion). Finally, the lease pursuant to which NMG occupies the demised premises defines the leased property to include: "(b) Lessee's Store Building (as [*3]hereinafter defined) and all other improvements presently situated, or hereafter constructed upon the Land including Lessee's Truck Facilities and the Perimeter Sidewalks on the Land (the Leased Improvements')" (See Exhibit "W" to NMG's moving papers on the instant motion at Page 2, Paragraph 1.1[b]). Every piece of documentary evidence offered to date indicates that NMG was responsible for the loading dock area where the Plaintiff in this matter was injured (all the way out to and including the perimeter sidewalks surrounding NMG's building). Therefore, even assuming arguendo that the deposition of the prior year's plowing contractor established that he plowed the area in question when he plowed the rest of the property, the fact remains that NMG was responsible for the area. NMG had the obligation and duty to inspect the work and make certain that it was properly done. If it wasn't, it was NMG's responsibility to notify the appropriate entity and follow up to see that the problem was corrected. Since it has never been disputed that the last time the area was plowed was January 3 of 2001 and that the plaintiff's accident occurred on January 23, 2001, NMG had more than adequate time to inspect the area, learn of any deficiencies in the work performed and take appropriate action. Whether such action would be to call Simon, Aversa or someone else is immaterial to any of the issues at hand. NMG's negligent supervision over the services, the delay between the last plowing of the area in question and the subsequent snowfall were all intervening, superceding causes of the plaintiff's injuries in the instant matter. NMG has provided no legal basis for the position that it had no obligation to concern itself with the loading area merely because someone else plowed it. NMG is a large, sophisticated entity which cannot, at this late date, be heard to complain that it was not aware of its contractual obligations and responsibilities for the area.

Accordingly, NMG's motion to renew and reargue is denied.

The foregoing constitutes the decision and order of the Court.

Dated:White Plains, New York

March 26, 2004

____________________________

HON. LINDA S. JAMIESON

Justice of the Supreme Court