Samuels v Consolidated Edison Co. of N.Y., Inc.

Samuels v Consolidated Edison Co. of N.Y., Inc. 2012 NY Slip Op 05252 Decided on June 28, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 28, 2012
Saxe, J.P., Friedman, Renwick, DeGrasse, Richter, JJ. 8047- 8048 & M-924 & M-964 &
107142/04 590214/08 -1502

[*1]William C. Samuels, Plaintiff-Appellant, ——

v

Consolidated Edison Company of New York, Inc., Defendant/Third-Party Plaintiff-Respondent, —— Roadway Contracting, Inc., Third-Party Defendant-Respondent. Consolidated Edison Company of New York, Inc., Second Third-Party Plaintiff, —— Alex R. Fradkoff, etc., et al., Second Third-Party Defendants, Theodore Wagner Plumbing and Heating Corp., Second Third-Party Defendant-Respondent.




Zetlin & De Chiara, LLP, New York (James H. Rowland of
counsel), for appellant.
Richard W. Babinecz, New York (Stephen T. Brewi of counsel),
for Consolidated Edison Company of New York, Inc.,
respondent.
Mauro Lilling Naparty LLP, Great Neck (Katherine Herr
Solomon of counsel), for Roadway Contracting, Inc., respondent.
Faust Goetz Schenker & Blee, LLP, New York (Christopher B.
Kinzel of counsel), for Theodore [*2]Wagner Plumbing and Heating
Corp., respondent.

Order, Supreme Court, New York County (Judith Gische, J.), entered June 11, 2010, which granted defendant Consolidated Edison Company of New York's (Con Ed) oral application to dismiss plaintiff's action against it, unanimously reversed, on the law, without costs, and the application denied. Appeal from the so-ordered transcript, same court and Justice, entered September 7, 2010, unanimously dismissed, without costs, as moot.

The court improperly heard Con Ed's pre-trial oral application to dismiss plaintiff's complaint. The motion was in substance a motion for summary judgment and as such was untimely. CPLR 3212 [a]; Brill v City of New York 2 NY3d 648 (2004). In addition the motion should have been made on papers.

M-924 &

M-964 &

M-1502 -William C. Samuels v Consolidate Edison

Company of New York, Inc. Motions to dismiss appeal denied and cross motion to deem the appeal timely granted.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 28, 2012

DEPUTY CLERK