USE OF MOTION TO REARGUE TO RAISE NEW ISSUES REQUIRED REVERSAL.

The Third Department reversed based upon the improper use of a motion to reargue, despite the defendants’ failure to raise the issue. The motion was improperly based upon a theory not raised in the original motion:

 “[A] motion to reargue is not available to advance a new theory of liability, or to present arguments different from those originally asserted” … , but plaintiffs did just that in their motion for reargument, arguing that the installation of the original “[s]ewer [l]ine was no longer an issue” and that the alleged trespass caused by the new sewer line justified a grant of summary judgment. Supreme Court accordingly abused its discretion in granting reargument based upon the presence of the new sewer line, a claim that was not raised by plaintiffs in either their original motion for summary judgment or their complaint … . Wasson v Bond, 2015 NY Slip Op 08900, 3rd Dept 12-3-15

CIVIL PROCEDURE (MOTION TO REARGUE, IMPROPER USE OF MOTION REQUIRED REVERSAL)/REARGUE, MOTION TO (IMPROPER USE OF MOTION TO REARGUE REQUIRED REVERSAL)/APPEALS (IMPROPER USE OF MOTION TO REARGUE REQUIRED REVERSAL DESPITE FAILURE TO RAISE THE ISSUE)