GARIERI v. INTERNATIONAL BUSINESS MACHINES

ORDERED that the appeal from the order entered August 23, 1999, is dismissed, as that order was superseded by the order entered December 1, 1999, made upon reargument; and it is further,

ORDERED that the order entered December 1, 1999, is affirmed insofar as appealed from; and it is further,

ORDERED that the respondent is awarded one bill of costs.

The Supreme Court properly denied the plaintiff's motion for partial summary judgment on the issue of liability under Labor Law § 240(1). Questions of fact exist as to whether a ladder provided proper protection to the plaintiff (see, Bland v. Manocherian, 66 N.Y.2d 452; Rice v. PCM Dev. Agency Co., 230 A.D.2d 898), and whether the plaintiff's actions were the sole proximate cause of the accident (see, Weininger v. Hagedorn Co., 91 N.Y.2d 958; Tweedy v. Roman Catholic Church of Our Lady of Victory, 232 A.D.2d 630).

The plaintiff's motion, denominated as one for renewal and reargument, was not based upon new evidence which was unavailable at the time of the original motion. Therefore, the motion was actually a motion for reargument (see, McCorvey v. Schoulder, A.D.2d [2d Dept., June 5, 2000]; Knutson v. Sand, 249 A.D.2d 451). As the Supreme Court reviewed the merits of the plaintiff's arguments, the court, in effect, granted reargument and then adhered to its original determination, and therefore, the order made upon reargument is appealable (see, Raso v. Raso, 237 A.D.2d 342; U-Eat-More Donut Corp. v. Tedel Estates, 237 A.D.2d 347-348).