Upon the foregoing papers, the motion by defendant Beth Medrash Emek Halacha (Beth Medrash) for leave to renew and/or reargue its prior cross motion for summary judgment or, alternatively, for leave to amend its answer pursuant to CPLR 3025(b), and, thereupon, for an order granting summary judgment dismissing the complaint against it is, in all respects, denied.

On November 5, 2002, plaintiff Chaim Lissauer allegedly fell and was injured on the exterior steps of the premises at 1774 58 Street in Brooklyn. Thereafter, he commenced this personal injury action against the alleged owners of the subject premises, including Beth Medrash.

In its prior cross motion for summary judgment, Beth Medrash argued that plaintiff's deposition testimony failed to establish any negligence on its part since he testified that he did not know the cause of his fall or even on which step he fell. In opposition to the cross motion, plaintiff submitted an affidavit of an engineer, Norman Wexler, in which he averred that the step geometry of the exterior stairway constituted a violation of the New York City Building Code, as was the failure to have a handrail on the steps. Plaintiff also pointed out that he had never used the stairway before and had no idea that there was a step leading from the exterior door to the alleyway. By order dated September 9, 2005, the cross motion, as well as a dismissal motion by defendant Yeshiva Sharei Hatzlucha, Inc.(Yeshiva), were denied.^[FN1]

In seeking renewal and/or reargument, Beth Medrash points out that Yeshiva appealed the prior order and that, with respect to Yeshiva, the order was reversed and the [*2]complaint dismissed. In its opinion, the Appellate Division, Second Department, found that Yeshiva had made a prima facie showing of entitlement to judgment as a matter of law by establishing that plaintiff was unable to identify the cause of his fall. The court also found that the expert's opinion that the accident was proximately caused by the step risers and tread widths, rather a misstep or loss of balance, was based on sheer speculation. Beth Medrash contends that the doctrines of res judicata and collateral estoppel bar plaintiff from maintaining and continuing this action against it.

In opposition to the motion, plaintiff argues that "additional factual material" has been presented that was part of the record on appeal and, therefore, the defenses of res judicata and collateral estoppel do not apply. The "additional factual material" to which plaintiff refers is the transcript of his second examination before trial, which examination before trial had been demanded by Beth Medrash. Plaintiff asserts that, at the most recent examination before trial, he identified the cause of his fall and confirmed that the defects noted by his expert were a proximate cause of the accident; namely, " the landing was shortened and it was sudden" and he "couldn't see that there was stairs". Plaintiff also faults Beth Medrash for failing to move sooner for leave to renew or reargue and for failing to appeal the prior order.

In reply, Beth Medrash asserts that plaintiff's further deposition "adds no relevant new information to the deposition that was available to Appellate Division" and "does not help plaintiff prove any proximate cause". Beth Medrash characterizes plaintiff's additional testimony regarding the short landing as "a mere reiteration of the expert testimony" that the Appellate Division reviewed when it considered Yeshiva's appeal.

CPLR 2221 (f) provides, in part, that a combined motion for leave to reargue and leave to renew shall identify separately and support separately each item of relief sought. In its motion, Beth Medrash urges that "res judicata and collateral estoppel preclude plaintiff from maintaining and continuing this action". Since Beth Medrash has not asserted any new or newly-discovered facts, the motion is properly denominated as a motion for reargument (see Johnson v Incorporated Village of Freeport, 303 AD2d 640[2003]). As such, the motion is untimely since it was not made within 30 days after service of a copy of the order determining the prior motion and written notice of its entry (see CPLR 2221 [d] [3]). Moreover, because an appeal by Beth Medrash is not pending, an exception is not warranted (see Itzkowitz v King Kullen Grocery Co., Inc., 22 AD3d 636 [2005]).

Even if the motion for reargument were timely, under the circumstances, summary judgment in favor of Beth Medrash would be inappropriate . In Bitterman v Grotyohann (295 AD2d 383 [2002]), which was cited by the Appellate Division in its decision herein, the court held that the evidence offered by the plaintiff in opposition to a motion for summary judgment was insufficient to raise a triable issue of fact. In that case, the plaintiff testified that she did not know what caused her fall, nor had she observed any defect on the steps. Here, Beth Medrash sought a second disposition of plaintiff so that he could answer specific questions regarding the alleged defect, lest Beth Medrash "suffer surprise at trial and be greatly prejudiced". At that deposition, plaintiff [*3]explained that he was unaware of the presence of the step, that "[t]he landing was short" and that such defect caused him to fall. Plaintiff's new testimony raises an issue of fact as to the cause of his accident and Beth Medrash's responsibility therefor. Given that testimony, the examination of plaintiff's expert was not, as previously, based upon mere speculation. In an affirmation in support of the instant motion, Yeshiva contends that plaintiff has contradicted his earlier testimony in which he was unable to identify the cause of his fall. Although plaintiff did not attribute his fall to a broken step or a slippery landing, for example, he did testify at his original deposition that he "wanted to walk out and the next is I'm on the floor", a statement which implies that the landing was not as large as he expected it to be. He also testified (originally) that, as he fell, "[t]here was nothing to hold onto."

To the extent that Beth Medrash seeks to amend its answer, such relief is likewise denied since the basis for the amendment is without merit (see City of New York v Zurich-American Ins. Group, 27 AD3d 609 [2006]).

The foregoing constitutes the decision and order of this court.

E N T E R,

J. S. C.