Luciano v. H.R.H. Constr., LLC

• Decision Date: 17 November 2011
• Parties: Hector LUCIANO, Plaintiff, v. H.R.H. CONSTRUCTION, LLC, et al., Defendants.[And Third Party Actions].Mometal Inc., et al., Third Third–Party Plaintiffs–Respondents, v. Admiral Insurance Company, Third Third–Party Defendant–Appellant.
• Court: New York Supreme Court — Appellate Division

2011 N.Y. Slip Op. 08305
89 A.D.3d 578
933 N.Y.S.2d 17

Hector LUCIANO, Plaintiff,
v.
H.R.H. CONSTRUCTION, LLC, et al., Defendants.[And Third Party Actions].Mometal Inc., et al., Third Third–Party Plaintiffs–Respondents,
v.
Admiral Insurance Company, Third Third–Party Defendant–Appellant.

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

Nov. 17, 2011.

[933 N.Y.S.2d 18]

Kral, Clerkin, Redmond, Ryan, Perry & Van Etten, LLP, Melville (Michael G. Walker of counsel), for appellant.

Haworth Coleman & Gerstman, LLC, New York (Nora Coleman of counsel), for respondents.

MAZZARELLI, J.P., SWEENY, MOSKOWITZ, ACOSTA, ABDUS–SALAAM, JJ.

[89 A.D.3d 578] Order, Supreme Court, Bronx County (Howard R. Silver, J.), entered June 14, 2010, which, in this personal injury action arising from a construction accident, to the extent appealed from as limited by the briefs, denied appellant insurer's motion for summary judgment dismissing the third third-party complaint, unanimously affirmed, without costs.

Supreme Court properly denied the motion as untimely. Absent other directive from the court, summary judgment motions[89 A.D.3d 579] should be made no later than 120 days “after the filing of the note of issue” (CPLR 3212 [a] [emphasis added] ). It is undisputed that the insurer did not move for summary judgment until two years after plaintiff filed the note of issue. Although the insurer was not served with the note of issue, it does not deny that it knew about its filing ( cf. McFadden v. 530 Fifth Ave. RPS III Assoc., LP, 28 A.D.3d 202, 202–203, 812 N.Y.S.2d 88 [2006] ). Accordingly, the motion court correctly required “a satisfactory explanation for the untimeliness” and properly determined that no such explanation was given ( Brill v. City of New York, 2 N.Y.3d 648, 652, 781 N.Y.S.2d 261, 814 N.E.2d 431 [2004] ).

We reject the insurer's argument, raised for the first time on appeal, that it did not believe that the 120–day period had begun to run, because a note of issue had been filed only in the main action, not in the “severed” third third-party action. By order entered January 17, 2007, the court (Lucindo Suarez, J.) granted the insurer's motion to sever the third third-party claims only to the extent of severing the claims for trial on the condition that they were not “disposed of prior thereto.” Accordingly, as the court explicitly stated in its order, the actions remained consolidated through discovery. Thus, plaintiff's filing of the note of issue...