Greater N.Y. Mut. Ins. Co. v Coach, Inc.

Greater N.Y. Mut. Ins. Co. v Coach, Inc. 2013 NY Slip Op 08120 Decided on December 5, 2013 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 December 5, 2013
Tom, J.P., Friedman, Renwick, Feinman, Clark, JJ.
11262 106354/08

[*1]Greater New York Mutual Insurance Company, as subrogee of Bauman 34th Street, LLC, et al., Plaintiffs-Appellants,

v

Coach, Inc., Defendant, Gateway Enterprises, Inc., Defendant-Respondent.




Gwertzman Lefkowitz Burman Smith & Marcus, New York
(Roberta Burman of counsel), for appellants.
Quirk and Bakalor, P.C., New York (Robert E. Quirk of
counsel), for respondent.

Order, Supreme Court, New York County (Paul Wooten, J.), entered July 17, 2012, which, insofar as appealed from as limited by the briefs, denied plaintiff's motion to amend the complaint to add a new defendant, and granted defendant Gateway Enterprises, Inc.'s cross motion for summary judgment, unanimously modified, on the law, to deny Gateway's cross motion, and otherwise affirmed, without costs.

Given the numerous statements and evidentiary items plaintiff received that indicated nonparty LJG performed work on the job in question, plaintiff's failure to make diligent inquiry into LJG's role precludes the application of the relation back doctrine here (Tucker v Lorieo, 291 AD2d 261, 262 [1st Dept 2002]). Further, plaintiff failed to establish that defendant Gateway would be vicariously liable for any acts by LJG. Thus, notwithstanding some overlap of ownership and officers, there was no unity of interest between Gateway and LJG (Mercer v 203 E. 72nd St. Corp., 300 AD2d 105, 106 [1st Dept 2002]). However, the statements by Gateway [*2]that it was the contractor on the job, coupled with other evidence of its role on the job and the fact that it may have supervised the work in question, precludes the grant of summary judgment in its favor.

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

ENTERED: DECEMBER 5, 2013

CLERK