United Serv. Auto. Ass'n v. Wiley

• Decision Date: 25 May 2010
• Citation: 904 N.Y.S.2d 436,73 A.D.3d 1160
• Court: New York Supreme Court — Appellate Division
• Parties: UNITED SERVICES AUTOMOBILE ASSOCIATION, etc., plaintiff-respondent, v. Ed WILEY, et al., defendants-respondents, Kate O'Brian, et al., appellants, et al., defendant. (Action No. 1). Edward Powers III, etc., respondent-appellant, Molly Spencer, plaintiff-respondent, v. Ed Wiley, etc., et al., defendants-respondents, Kate O'Brian, et al., appellants-respondents, Eastchester Fire District, appellant, et al., defendant. (Action No. 2). State Farm Fire & Casualty Company, etc., respondent, v. Ed Wiley Slate Co., et al., defendants, Eastchester Fire District, appellant. (Action No. 3). State Farm Fire & Casualty Company, etc., respondent, v. Village of Bronxville, et al., defendants, Eastchester Fire District, appellant. (Action No. 4).

904 N.Y.S.2d 436
73 A.D.3d 1160

UNITED SERVICES AUTOMOBILE ASSOCIATION, etc., plaintiff-respondent,
v.
Ed WILEY, et al., defendants-respondents,
Kate O'Brian, et al., appellants, et al., defendant. (Action No. 1).
Edward Powers III, etc., respondent-appellant,
Molly Spencer, plaintiff-respondent,
v.
Ed Wiley, etc., et al., defendants-respondents,
Kate O'Brian, et al., appellants-respondents,
Eastchester Fire District, appellant, et al., defendant. (Action No. 2).
State Farm Fire & Casualty Company, etc., respondent,
v.
Ed Wiley Slate Co., et al., defendants,
Eastchester Fire District, appellant. (Action No. 3).
State Farm Fire & Casualty Company, etc., respondent,
v.
Village of Bronxville, et al., defendants,
Eastchester Fire District, appellant. (Action No. 4).

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

May 25, 2010.

904 N.Y.S.2d 437

Penino & Moynihan, LLP, White Plains, N.Y. (Vinai C. Vinlander of counsel), for appellants Kate O'Brian and Thomas Smith in Action No. 1 and appellants-respondents in Action No. 2.

Furey, Furey, Leverage, Manzione, Williams & Darlington, P.C., Hempstead, N.Y. (Susan Weihs Darlington of counsel), for appellant Eastchester Fire District.

Graubard Miller, New York, N.Y. (Nancy R. Sills, Peter A. Schwartz, and Caryn L. Marcus of counsel), for respondent-appellant in Action No. 2.

Stuart D. Markowitz, P.C., Jericho, N.Y. (Kristen Renzulli of counsel), for respondent State Farm Fire & Casualty Company.

REINALDO E. RIVERA, J.P., JOSEPH COVELLO, DANIEL D. ANGIOLILLO, and SANDRA L. SGROI, JJ.

73 A.D.3d 1160

Motion by the appellant Eastchester Fire District, inter alia, for leave to reargue an appeal from an order of the Supreme Court, Westchester County, entered July 13, 2007, which was determined by decision and order of this Court dated March 31, 2009, or in the alternative, for leave to appeal to the Court of Appeals from the decision and order of this Court.

73 A.D.3d 1161

Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is,

ORDERED that the branch of the motion which is for leave to reargue is granted and the motion is otherwise denied; and it is further,

ORDERED that, upon reargument, the decision and order of this Court dated March 31, 2009

904 N.Y.S.2d 438

( United Serv. Auto. Assn. v. Wiley, 60 A.D.3d 1042, 876 N.Y.S.2d 444), is recalled and vacated, and the following decision and order is substituted therefor:

In four related actions to recover damages for injury to property, (1) Kate O'Brian and Thomas Smith appeal, as limited by their brief, from so much of an order of the Supreme Court, Westchester County (O. Bellantoni, J.), entered July 13, 2007, as denied their motion for summary judgment dismissing the complaints and all cross claims insofar as asserted against them in Action Nos. 1 and 2, (2) the Eastchester Fire District separately appeals from so much of the same order as denied its motion for summary judgment dismissing all complaints and cross claims insofar as asserted against it, and (3) Edward W. Powers III cross-appeals from so much of the same order as denied that branch of his cross motion which was for summary judgment on...