Quizhpi v. Lochinvar Corporation

• Decision Date: 18 November 2004
• Docket Number: 4642.
• Citation: 785 N.Y.S.2d 431,2004 NY Slip Op 08312,12 A.D.3d 252
• Parties: SEGUNDO QUIZHPI, Appellant, v. LOCHINVAR CORPORATION et al., Respondents, and TJERNLUND PRODUCTS, INC., et al., Defendants. (And Other Actions.)
• Court: New York Supreme Court — Appellate Division

12 A.D.3d 252

785 N.Y.S.2d 431

2004 NY Slip Op 08312

SEGUNDO QUIZHPI, Appellant, v. LOCHINVAR CORPORATION et al., Respondents, and TJERNLUND PRODUCTS, INC., et al., Defendants. (And Other Actions.)

4642.

Appellate Division of the Supreme Court of the State of New York, First Department.

November 18, 2004.

Order, Supreme Court, Bronx County (Alexander W. Hunter, Jr., J.), entered on or about January 20, 2004, granting the motions of defendants A.O. Smith Corporation and Lochinvar Corporation for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Good cause existed for the filing of a late motion for summary judgment, pursuant to CPLR 3212 (a), where the court acquiesced in, and had actual knowledge of, ongoing discovery subsequent to the filing of the note of issue. This was confirmed in a writing authored by plaintiff's counsel. Under such circumstances, the court's tacit consent to consideration of the motion was within its discretion (cf. Brill v City of New York, 2 NY3d 648 [2004]).

The moving defendants satisfied their respective burdens, and plaintiff failed to come forward with evidence that any alleged breach of duty by the movants proximately caused the injury alleged (see Sosna v American Home Prods., 298 AD2d 158 [2002]).

Concur — Buckley, P.J., Nardelli, Saxe, Sullivan and Gonzalez, JJ.