Monroe v. Consol. Edison Co. NY

• Decision Date: 26 March 2001
• Citation: 722 N.Y.S.2d 179
• Parties: (A.D. 2 Dept. 2001) Melvin Monroe, plaintiff-respondent, v Consolidated Edison Company of New York, Inc., defendant third-party plaintiff-appellant; Cleveland Wrecking Company, third-party defendant-respondent. 2000-05980, 2000-08805 : SECOND JUDICIAL DEPARTMENT
• Court: New York Supreme Court — Appellate Division

Page 179

722 N.Y.S.2d 179 (A.D. 2 Dept. 2001)

Melvin Monroe, plaintiff-respondent, v Consolidated Edison Company of New York, Inc., defendant third-party plaintiff-appellant;

Cleveland Wrecking Company, third-party defendant-respondent.

2000-05980, 2000-08805

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: SECOND JUDICIAL DEPARTMENT

March 26, 2001

Richard W. Babinecz, New York, N.Y. (Helman R. Brook of counsel), for defendant third-party plaintiff-appellant.

Steven Siegel, P.C., Kew Gardens, N.Y. (George F. Hand, Jr., of counsel), for plaintiff-respondent.

In an action to recover damages for personal injuries, the defendant third-party plaintiff Consolidated Edison Company of New York, Inc., appeals (1), as limited by its brief, from so much of an order of the Supreme Court, Kings County (Mason, J.), dated May 16, 2000, as, in effect, denied that branch of the third-party defendant's motion which was for summary judgment dismissing the complaint, and (2) from an order of the same court, dated August 8, 2000, which denied its motion, inter alia, for summary judgment.

ORDERED that the appeal from the order dated May 16, 2000, is dismissed; and it is further,

ORDERED that the order dated August 8, 2000, is affirmed; and it is further,

ORDERED that the plaintiff is awarded one bill of costs.

The appeal from the order dated May 16, 2000, must be dismissed, as the appellant is not aggrieved by that order insofar as appealed from since it neither moved for summary judgment dismissing the complaint nor joined in third-party defendant's motion for summary judgment dismissing the complaint (see, CPLR 5511; Papa v Regan, 256 A.D.2d 452).

The Supreme Court providently exercised its discretion in denying, as untimely, the appellant's subsequent motion, inter alia, for summary judgment (see, CPLR 3212[a]; Haqq v Synergy Gas, 256 A.D.2d 442; Olzaski v Locust Val. Cent. School Dist., 256 A.D.2d 320; Anzalone v Varis, 254 A.D.2d 381; Rich v Ciano, 254 A.D.2d 268; Shmulevich v Gabbidon, 253 A.D.2d 756; Krug v Jones, 252 A.D.2d 572).

S. MILLER, J.P., FRIEDMANN, H. MILLER and SMITH, JJ., concur.