Kellogg v. All Saints Hous. Dev. Fund Co.

• Decision Date: 19 January 2017
• Citation: 2017 N.Y. Slip Op. 00412,46 N.Y.S.3d 30,146 A.D.3d 615
• Parties: Joseph KELLOGG, Plaintiff–Respondent, v. ALL SAINTS HOUSING DEVELOPMENT FUND CO., INC., Defendant, 1916 Partners, et al., Defendants–Respondents–Appellants, Plaza Homes LLC, et al., Defendants–Respondents, Artec Construction and Development Corp., Defendant–Appellant–Respondent.
• Court: New York Supreme Court — Appellate Division

146 A.D.3d 615
46 N.Y.S.3d 30
2017 N.Y. Slip Op. 00412

Joseph KELLOGG, Plaintiff–Respondent,
v.
ALL SAINTS HOUSING DEVELOPMENT FUND CO., INC., Defendant,

1916 Partners, et al., Defendants–Respondents–Appellants,

Plaza Homes LLC, et al., Defendants–Respondents,

Artec Construction and Development Corp., Defendant–Appellant–Respondent.

Supreme Court, Appellate Division, First Department, New York.

Jan. 19, 2017.

46 N.Y.S.3d 31

Law Office of James J. Toomey, New York (Eric P. Tosca of counsel), for appellant-respondent.

Lyman & Lyman, LLC, Ithaca (Nathan M. Lyman of counsel), for 1916 Park, LLC d/b/a 1916 Partners and Jason H. Fane, respondents-appellants.

Montfort, Healy, McGuire & Salley, Garden City (Donald S. Neumann, Jr. of counsel), for 45 East 131st Street Housing Development Fund Corporation, respondent-appellant.

Mirman, Markovits & Landau, New York (Ephrem J. Wertenteil of counsel), for respondent.

46 N.Y.S.3d 32

FRIEDMAN, J.P., RENWICK, RICHTER, MOSKOWITZ, KAPNICK, JJ.

146 A.D.3d 615

Order, Supreme Court, New York County (Joan M. Kenney, J.), entered April 10, 2015, which denied defendant Artec Construction and Development Corp.'s motion to strike the note of issue, unanimously reversed, on the law, without costs, and the motion granted. Orders, same court and Justice, entered February 16 and 18, 2016, which denied the motions brought by Artec Construction and Development Corp., 45 East 131st Street Housing Development Fund Corporation, 1916 Park, LLC d/b/a 1916 Partners, and Jason Fane for summary judgment and for leave to file late dispositive motions, unanimously modified, on the law, to grant leave to file the untimely motions, and to grant summary judgment in favor of 45 East 131st St. Housing Development Fund Corporation, Fane, and Artec Construction and Development Corp, and otherwise affirmed, without costs. The Clerk is directed to enter judgment dismissing the complaint against 45 East, Fane, and Artec.

Plaintiff seeks damages in connection with injuries allegedly sustained when he tripped on a defect in the sidewalk abutting a parking lot owned by 1916 Park, LLC d/b/a 1916 Partners (1916 Park).

Summary judgment dismissing the complaint and all cross claims should be granted in favor of defendant 45 East 131st

146 A.D.3d 616

St. Housing Development Fund Corporation. Its motion, premised on its lack of any connection to the subject sidewalk, is unopposed.

The motion court erred in not granting the motion by Artec Construction and Development Corp. to strike the note of issue or extend its time to move for summary judgment where Artec demonstrated that it would otherwise be deprived of a reasonable opportunity to...