Turner Constr. Co. v H.E.L.P. Social Serv. Corp.

Turner Constr. Co. v H.E.L.P. Social Serv. Corp. 2007 NY Slip Op 06806 [43 AD3d 731] September 20, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, November 7, 2007

Turner Construction Co. et al., Respondents,
v
H.E.L.P. Social Service Corporation et al., Defendants, and AIG Insurance Company, Appellant.

—[*1] Lester Schwab Katz & Dwyer, LLP, New York (Eric A. Portuguese of counsel), for appellant.

Robin, Harris, King, Yuhas, Fodera & Richman, New York (Deborah F. Peters of counsel), for respondents.

Order, Supreme Court, New York County (Leland DeGrasse, J.), entered December 14, 2005, which denied defendant AIG's motion for summary judgment on its counterclaims for defense and indemnification against plaintiff Liberty Mutual in connection with an underlying personal injury action, unanimously affirmed, without costs.

AIG improperly sought to make successive, fragmentary motions for summary judgment in this matter (Phoenix Four v Albertini, 245 AD2d 166 [1997]). Prior to the order on the motion at issue herein, AIG had made a cross motion for summary judgment directed to the counterclaims, which was denied as premature because plaintiffs had not served a reply to AIG's counterclaims. In its subsequent motion for summary judgment on its counterclaims, AIG attached a copy of plaintiffs' reply to the counterclaims, which was dated April 30, 2003, prior to the notice of AIG's earlier cross motion seeking the same relief. However, AIG offered no explanation for its failure to include a copy of the reply to its counterclaims in its earlier cross motion. We decline to consider the explanation AIG offers for the first time on this appeal. Concur—Andrias, J.P., Nardelli, Sweeny and McGuire, JJ.