Dawson v Riverbay Corp.

[*1] Dawson v Riverbay Corp. 2010 NY Slip Op 50389(U) [26 Misc 3d 143(A)] Decided on March 11, 2010 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through March 17, 2010; it will not be published in the printed Official Reports.

Decided on March 11, 2010
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Hunter, JJ
.

Lonnie Dawson, Lonnie Dawson Jr., and Anthony Dawson, 570640/09Plaintiffs-Appellants,

against

Riverbay Corporation, Defendant-Respondent.

Plaintiffs, as limited by their briefs, appeal from (1) that portion of an order of the Civil Court of the City of New York, Bronx County (Francis M. Alessandro, J.), entered May 22, 2008, which granted defendant's cross motion to dismiss plaintiffs' first, seventh, eighth, ninth and tenth causes of action, and (2) that portion of an order (same court, Arthur F. Engoron, J.), dated January 9, 2004, which denied plaintiffs' motion for summary judgment on their complaint.

Per Curiam.

Order (Francis M. Alessandro, J.), entered May 22, 2008, insofar as appealed from, reversed, with $10 costs, defendant's cross motion denied and plaintiffs' first, seventh, eighth, ninth and tenth causes of action reinstated. Appeal from order (Arthur F. Engoron, J.), dated January 9, 2004, dismissed, without costs, as untimely (see CPLR 5513[a]).

That branch of defendant's cross motion seeking dismissal of plaintiffs' cause of action for breach of lease on the ground that the action was barred by a release previously executed by plaintiffs in favor of defendant (see CPLR 3211[a][5]) should have been denied. Defendant waived the affirmative defense of release by failing to raise it in the answer or a timely motion to dismiss (see CPLR 3211[e]; see also Mayers v D'Agostino, 58 NY2d 696 [1982]; Lipman v Vebeliunas, 39 AD3d 488 [2007]; Valente v Allen Shuman and Irwin Richt, D.P.M., P.C., 137 AD2d 678 [1988]). Moreover, defendant never sought leave to amend the answer to assert that defense (cf. Hickey v Hutton, 182 AD2d 801 [1992]). In any event, defendant failed to demonstrate that the release bars the instant action. The subject release was executed by plaintiffs in a prior, independent action between the parties, and does not by its terms cover the claims raised by plaintiffs in the action at bar.

That branch of defendant's motion seeking summary judgment dismissing the complaint should also have been denied, since that motion violated the general proscription against successive summary judgment motions, defendant having previously moved for such relief in May 2002 (see Phoenix Four, Inc. v Albertini, 245 AD2d 166 [1997]; Levitz v Robbins Music Corp., 17 AD2d 801 [1962]). In this connection we note that, on its second summary judgment motion, defendant relied on materials that existed at the time defendant made its initial motion for summary judgment (see Turner Const. Co. v H.E.L.P. Social Serv. Corp., 43 AD3d 731 [*2][2007]; cf. Fielding v Envtl. Resources Mgt. Group, 253 AD2d 713 [1998]).

Because plaintiffs' purported appeal from the court's January 9, 2004 order is untimely (see CPLR 5513[a]), we are foreclosed, at least at this juncture (cf. CPLR 5501[a][1]), from reviewing whether Civil Court properly denied plaintiffs' motion for summary judgment.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: March 11, 2010