West Broadway Funding Associates v. Friedman
| Decision Date | 01 June 2010 |
| Citation | 2010 N.Y. Slip Op. 04781,74 A.D.3d 798,901 N.Y.S.2d 548 |
| Parties | WEST BROADWAY FUNDING ASSOCIATES, et al., plaintiffs,Harrison Equities, LLC, respondent,v.Gary FRIEDMAN, et al., defendants third-party plaintiffs, et al., thirdparty defendants,Fidelity National Title Insurance Company, third-party defendant-appellant. |
| Court | New York Supreme Court — Appellate Division |
OPINION TEXT STARTS HEREMarcus, Gould & Sussman, LLP, White Plains, N.Y. (Kenneth J. Gould of counsel), for third-party defendant-appellant.Eric W. Berry, New York, N.Y., for respondent.
In an action, inter alia, to recover damages for breach of contract, the third-party defendant Fidelity National Title Insurance Company appeals from an amended judgment of the Supreme Court, Westchester County (Loehr, J.), entered February 5, 2009, which, upon an order of the same court entered September 30, 2008, granting the motion of the plaintiff Harrison Equities, LLC, among other things, (1) in effect, to dismiss the affirmative defenses of the third-party defendant Fidelity National Title Insurance Company based on (a) the allegation that Harrison Equities, LLC, “created, suffered, assumed, or agreed to” the defect in the deed, and (b) the allegation that Harrison Equities, LLC, prejudiced its rights of subrogation by giving certain releases to John Faracco, JBL Development Corp., Gary Friedman, and Natale Friedman & Segall, LLC, and (2) to preclude from trial (a) evidence concerning releases given by Harrison Equities to John Faracco, JBL Development Corp., Gary Friedman, and Natale Friedman & Segall, LLC, (b) evidence that Harrison Equities was contributorily negligent, and (c) evidence that Harrison Equities, LLC, failed to mitigate damages, and upon an order of the same court entered December 4, 2008, denying its motion for leave to reargue and directing the entry of judgment, is in favor of the plaintiff Harrison Equities, LLC, and against it in the principal sum of $530,000.
ORDERED that the amended judgment is reversed, on the law, with costs, the motion of the plaintiff Harrison Equities, LLC, is denied, the orders entered September 30, 2008, and December 4, 2008, are modified accordingly, and the matter is remitted to the Supreme Court, Westchester County, for trial.
The motion of the plaintiff Harrison Equities, LLC (hereinafter Harrison), was, in effect, an untimely motion for summary judgment ( see Rivera v. City of New York, 306 A.D.2d 456, 762 N.Y.S.2d 258; Rondout...
To continue reading
Request your trial
-
Farias-Alvarez v. Interim Healthcare of Greater N.Y.
...summary judgment on the issue of liability (see Ofman v. Ginsberg, 89 A.D.3d 908, 909, 933 N.Y.S.2d 103 ; West Broadway Funding Assoc. v. Friedman, 74 A.D.3d 798, 798, 901 N.Y.S.2d 548 ; Marshall v. 130 N. Bedford Rd. Mount Kisco Corp., 277 A.D.2d 432, 717 N.Y.S.2d 227 ; Downtown Art Co. v.......
-
Deberry–hall v. County of Nassau
...921 N.Y.S.2d 544; Castro v. New York City Health & Hosps. Corp., 74 A.D.3d at 1006, 903 N.Y.S.2d 152; West Broadway Funding Assoc. v. Friedman, 74 A.D.3d 798, 799, 901 N.Y.S.2d 548; Riccardi v. CVS Pharmacy, Inc., 60 A.D.3d 838, 874 N.Y.S.2d 381; Finger v. Saal, 56 A.D.3d 606, 606–607, 870 ......
-
Ofman v. Ginsberg
...plaintiff that the defendant's trial motion was, in effect, an untimely motion for summary judgment ( see West Broadway Funding Assoc. v. Friedman, 74 A.D.3d 798, 798, 901 N.Y.S.2d 548; Brewi–Bijoux v. City of New York, 73 A.D.3d 1112, 1113, 900 N.Y.S.2d 885; Matter of City of New York v. M......
- Wehrum v. Illmensee